Lord Falconer of Thoroton: They should be, my Lords. That is the position on all new builds. The Royal Courts of Justice, as the noble Baroness will know, were built in the middle of the 19th century, but that is no excuse for not getting the courts up to a standard where people who sit there as judges and those who use them have proper disabled access.

Lord Brabazon of Tara: My Lords, there are an extra three proposals for new committees. The first was a request from the noble Lord, Lord Fowler, for a sessional committee on broadcasting, the media and communications. The other two requests were for ad hoc committees. A committee on regulators was proposed by the noble Lord, Lord Holme of Cheltenham, and a committee on the Civil Service Act was proposed by the noble Lord, Lord Lester of Herne Hill. The proponents of all three suggestions addressed the Liaison Committee on the merits of their proposals.
	It was the view of the committee that an ad hoc Select Committee on regulators should be appointed. The attraction of this proposal was that the committee would be cross-cutting and would deal with issues not dealt with by the House of Commons.
	It was the committee that neither the proposal of the noble Lord, Lord Fowler, nor that of the noble Lord, Lord Lester, should be supported. In the case of a Select Committee on the Civil Service Act, we felt that a committee would add little value to the deliberation reports of the many bodies that have already considered this issue. Notable among these was a report from the House of Commons Public Administration Committee in 2003.
	In the case of a Select Committee on broadcasting, the media and communications, the committee had two areas of concern. First, the proposal was for a new sessional committee rather than an ad hoc committee. That would call for a permanent commitment of resources. We are reluctant to agree to a new permanent committee on any subject at the moment. Our second concern was about the subject matter. Our committee system is designed to complement the committees of the House of Commons by being cross-cutting and concerned with specific issues. A Select Committee on broadcasting, the media and communications would overlap considerably with the House of Commons Culture, Media and Sport Committee, which could produce duplication and tension between the Houses. Nevertheless, as we said in our report, we are conscious of the impact and high reputation of the recent ad hoc Select Committee on the BBC's charter review, which is why we have not discouraged a new application for a further ad hoc Select Committee in this subject area.
	In view of the Motion tabled by the noble Lord, Lord Fowler, it might be helpful if I said a few words about why I hope that the advice of the Liaison Committee will be accepted. We considered the noble Lord's proposal carefully; in fact, it was the third time that the Liaison Committee had considered a proposal for a similar committee in the past four years. We have been consistent in our view that this subject area is already suitably scrutinised by the House of Commons. The House has delegated to the Liaison Committee the function of allocating resources for Select Committee work and for considering requests for ad hoc Select Committees. The committee was established in 1992 to bring rationality to a process which, until then, had been haphazard. The House normally accepts the committee's advice, as I hope it will on this occasion. I suggest that this advice should be set aside only when circumstances have changed and not simply because the advice has proved unwelcome to some.
	If the House were to agree to the noble Lord's amendment and the Liaison Committee considered that to be a reflection of the will of the House that such a committee be established, the Liaison Committee would have to consider the resource implications. Sessional Committees require significant staff and Peer resources. At the moment, the House does not have the staff to support a permanent new unit of committee activity so, whatever the Liaison Committee decides following a reference back, there would inevitably be a delay before such a committee could be set up. I beg to move.

Baroness Amos: My Lords, perhaps I may say that it had rather the opposite effect on the committee.
	If noble Lords were to look at the report from the Liaison Committee, they would see that it makes two recommendations. First, it does not discourage future applications for ad hoc committees in the subject area of broadcasting, media and communications, but, further, on page 5 of the report, at item 11 on the "Duration of Select Committees", the committee agreed that it would,
	"consider at a future meeting",
	at the,
	"desirability . . . of additional sessional committees".
	The reason that the committee made that decision was because it did not want to make a decision about agreeing to one possible additional sessional committee in isolation from any other requests for potential future sessional committees. This is a matter that the House will ultimately have to decide, but I think it will agree that there may be other areas in which noble Lords would wish to see an additional sessional committee. Any decision should not be made in isolation. That is precisely why the decision of the committee is framed in the way that it is.

Lord King of Bridgwater: My Lords, I listened with great interest to the noble Baroness the Leader of the House and her statement that the committee was not influenced by the letter received so late from the chairman of the committee in another place. It is interesting to remember that the letter was received very late for a committee meeting that had already been postponed and was intended to be held at an earlier date. However, if the committee was not going to take that letter into account, that cannot have been a reason not to let my noble friend Lord Fowler have sight of it. It is the most elementary principle of natural justice.
	I hope we do not need to have an argument about this. My noble friend Lord Fowler was not proposing that we should set this committee up now and have an agreement. With great respect to the noble Baroness the Leader of the House, I understand her position on this: she has to defend her corner. We all understand that the Lord President and the Clerk were put in an appallingly difficult position by the discourtesy of a chairman of a committee in another place sending a letter so late. He did not even copy it to his colleague and parliamentary friend to even let him know that he was doing it. They have both been put in an extremely difficult position.
	I do not want to argue about the merits of the committee at this stage, because that is not the issue before us. We will argue that in due course. Surely, with respect to the noble Baroness the Leader of the House, she has listened to and heard the voices. It is an argument, not about whether there should be a Select Committee on a permanent basis, but about whether there should be fair process in discussion of these matters. It does the House no great credit if it cannot say, "Okay, there is unhappiness about this, widely expressed in every corner of the House. Let us not make a fuss". I hope that, on reflection, the Lord President will feel that his colleagues on the Liaison Committee, who, it is no secret, also have some views on this matter, should have a chance to look at this again now that the full facts are known, so that natural justice can be seen to be done.

Lord Peston: My Lords, when I read the report of the Liaison Committee I was left in a state of despair. The section that we are debating is based on a complete misconception of how this House and your Lordships' committees operate. Your Lordships' committees, by their very nature, do not and cannot duplicate the work of committees in another place, even when they are in the same general area. The reason is well known to those who serve on these committees: they are totally evidence-based and subject-based; they are not department-based at all. Rarely, if ever, are they devoted to the work of a single department. More importantly, in my opinion and certainly in my experience, our committees are non-party political. None of those that I have had the privilege of serving on has ever voted, for example. The committee about which we are talking, although it was dealing with immensely contentious questions, was able to operate throughout without a vote. Those noble Lords who know the members of that committee will find it rather amazing that we were able to come to a balanced set of conclusions.
	Your Lordships' House is recognised as the best value for money Chamber of all the world's parliamentary democracies. Also—I hope this is not too contentious—we live in an immensely rich and successful economy, therefore the question of a resource constraint cannot arise on any rational grounds whatsoever. I repeat my despair but I hope that, without any loss of face, the Liaison Committee will look at this matter again and come back with a practical response—I underline the word "practical".
	I am still left feeling sad because, on the assumption that the committee will now follow the advice of your Lordships' House, the new committee will still not effectively be operational before the autumn—in fact, it will probably not be set up until after the Queen's Speech—and that itself is a great pity. I am not sure whether it is the Chairman of Committees or the Lord Privy Seal that we should be addressing here. I think that we are advising the Chairman of Committees, and the main thing is that he should accept what he has heard and say that he will go back and argue your Lordships' case to his committee.

Baroness McIntosh of Hudnall: My Lords, I shall be very brief but I feel that, as a very new and junior member of the Liaison Committee, I must simply underline one or two points made by my noble friend the Leader of the House and the Chairman of Committees.
	The impact of the letter from the chairman of the Commons Select Committee cannot be established as a matter of fact but it is probably fair to say that, because it arrived very late and the committee did not have a great deal of time to consider it, it did not have an overriding impact. The discussion about the committee involved a number of issues, all of which have been touched upon. I think it is fair to say that the committee came to its view taking account of most of the points made by the noble Lord, Lord Fowler, in the committee and here this afternoon and fully respecting the extremely good work already done by his committee and which, no doubt, will be done again by a similar committee. The committee did not simply follow the suggestion implicit in the letter from the Commons Select Committee.
	With great respect to my noble friend Lord Peston, I do not think that the resource implication has been addressed. There is an issue here. It was one that the committee felt obligated to take seriously, which I believe it did. But, on balance, the view that the committee took—I quite understand that the feeling of the House is running in a different direction—was based on a number of considerations which were weighed very carefully against what was undoubtedly an extremely strong case put forward by the noble Lord, Lord Fowler, and his colleagues.

Lord Barnett: My Lords, I am sorry to interrupt the noble Lord. I speak as the last person in the world who would ask to spend more money, but that if it is the will of the House for there to be a select committee, the resources would be pretty modest in relation to the spending of your Lordships' House?

Baroness Amos: My Lords, the noble Lord, Lord King, totally misunderstands the position. I am a member of the Liaison Committee with 10 other Members of this House. This is not a party political issue. It is a House matter. I rose to intervene to make a number of issues clear to the House. My recollection is that the committee considered this issue in great detail. I wanted to assure the House that the letter from the chairman of the Select Committee in another place did not impact on the decision taken by the committee in the way that seemed to be assumed in some of the interventions made in the House this afternoon. My recollection is that it had rather the opposite impact, because a number of Members of the committee were rather irritated and annoyed that the chairman of a Select Committee in another place sought to influence a committee making a decision in this House in that way. That is the first point that I wanted to make clear to the House as a member of the committee.
	The second point that I wanted to make clear to the House was that, over the years, there have been a number of occasions when requests have been made for additional sessional committees. Members of this House feel very strongly about different issues at different points in time. The Liaison Committee considered that and felt that it would not be appropriate to make a decision about one sessional committee in isolation. Given the strength of feeling around the House on some other issues and the fact that the committee was aware that there are Members who feel that there should be sessional committees on other issues, it felt that perhaps it should look at the principle of establishing further sessional committees, come back to the House and allow the House to make a decision. The committee could then look at any further requests for sessional committees.
	Those are the two points that I was trying to make clear to the House. I am not acting in a party political way. If the House wants the Liaison Committee to look at this issue again, then the Liaison Committee has to look at this issue again. If the House wants a sessional committee on media and broadcasting, then the House will get a Select Committee on media and broadcasting. But it is important that other Members of this House who feel that they would like a sessional committee on something else do not then come back and say, "If I thought it were possible for there to be a sessional committee, I would have made a request to the Liaison Committee". Those were the only points that I was trying to make. I am very sorry if the noble Lord, Lord King, thought that I was trying to make political points on what is very much a House issue.

Lord Drayson: My Lords, I beg to move that this Bill be now read a second time. We ask much of our Armed Forces. They will often be in physical danger. They are given the right to use violent force on a scale not available to others, but we demand that as highly professional Armed Forces they act in a controlled and measured way within the law. Their ability to operate in that way obviously depends on demanding training, but also complete clarity on how they are to act and on whose authority. The chain of command does that in peace and on operations, at home or overseas.
	The authority of the chain of command must be credible to those subject to it. It is critical to the delivery of unit cohesion and to operational effectiveness. Commanding officers are responsible for the discipline of those under their command. They exercise their authority primarily through their qualities of leadership and by inspiring the confidence, loyalty and trust of those who serve under them. However, ultimately, the Armed Forces must have the power to enforce discipline through a service criminal justice system. The integrity of the system is essential if we are to retain the confidence of those who are subject to it. It must support operational effectiveness and meet the expectations of members of today's Armed Forces. Above all, it must be fair. The Government are committed to retaining a separate system of service law. The primary purpose of this Bill is to provide the Armed Forces with a criminal justice system which meets these needs. It is not something that we have produced in a vacuum: all three services have been involved from the outset in developing the proposals and we have learnt from recent experience.
	I recognise that the present military criminal justice system has rarely been subject to so much scrutiny as in the past two or three years. I will not discuss specific cases today. No one thinks that the Armed Forces should be above the law. Investigations into alleged serious offences on operations will always be difficult for those involved. Those investigations must be professional and independent. Any decision to prosecute for a serious offence should be taken by an independent prosecutor with an understanding of the service context. Any trial of such an offence should be before an impartial tribunal comprising serving members of the Armed Forces, with an independent judge. Of course, there must be proper safeguards and support for those who face investigation and prosecution in the service system.
	Before I turn to some of the key provisions in the Bill I should like to say a few words about one matter which has been at the forefront of our minds as we have developed proposals in the Bill: the problem of undue delay. At worst, delay undermines operational effectiveness by damaging morale and unit cohesion. We must be rigorous in addressing it. I commend the efforts that the services and the Judge Advocate General are making to tackle delay in the current court martial system. The Bill will allow us to make further improvements, some of which I shall touch on.
	The Bill defines offences, provides for the investigation of alleged offences and the arrest, holding in custody and charging of individuals accused of committing an offence. It provides for service personnel to be dealt with summarily by their commanding officer or tried by court martial. It retains the right of service personnel to elect trial by court martial and to appeal to the summary appeal court or the court martial appeal court as appropriate.
	Much in the Bill is familiar. As my right honourable friend the then Secretary of State said in another place, it is evolution not revolution. But the key change is moving from three systems to a single system of service law. Having a single system enables the proper alignment of discipline and command instead of relying on ad hoc arrangements for joint operations as at present. It will mean that all service personnel will have the same powers, duties and rights when they are exercising their disciplinary functions or are being investigated for or charged with an offence. This is not only clearer, it is also fairer.
	Part 1 deals with offences. All offences under the Bill are service offences. They are divided into two types. First are those disciplinary offences that are unique to service law—many will be familiar—such as looting or absence without leave. Secondly, as now, service personnel will remain subject to the ordinary criminal law of England and Wales wherever they are serving. Clause 42 provides for these criminal conduct offences.
	The disciplinary offences have been reviewed and brought up to date. We have removed certain offences because they are no longer appropriate or are never charged, and are more properly charged under other provisions or dealt with administratively. It is not only the offence of scandalous conduct of officers that has gone. Other examples include allowing sequestration of aircraft or ship by a neutral state in time of war and billeting and requisitioning offences.
	I turn now to the powers of commanding officers. The Bill provides commanding officers, for the first time, with harmonised powers to deal with all those under command of whatever service. We are reducing the theoretical extensive summary jurisdiction of commanding officers in the Royal Navy. I say "theoretical" because, in reality, they do not exercise them over very serious matters, not least because their powers of punishment are far too limited. But we are increasing the powers of Army and Air Force commanding officers to deal with a small number of additional criminal offences set out in Part 2 of Schedule 1—in straightforward cases, Royal Navy commanding officers already deal with these summarily—and their powers of punishment are increased from 60 to 90 days' detention, in line with those of naval commanding officers now. The exercise of both these additional powers will be subject to the approval of a higher authority.
	The summary powers of commanding officers recognise the importance of being able to deal with such matters expeditiously, and we are also harmonising the powers of commanding officers to deal summarily with officers up to the rank of lieutenant colonel and equivalent, subject to certain conditions.
	Part 5 of the Bill sets out the duties of commanding officers in respect of allegations that serious offences have been committed. It provides in Clauses 113 and 114 that for specified, inherently serious offences and those committed where certain prescribed circumstances apply, the commanding officer will be required to inform the service police as soon as practicable. The service police, who may already be investigating the matter, are in turn required to refer the case to the independent Director of Service Prosecutions if they think that there is sufficient evidence to charge one of these offences. The Director of Service Prosecutions will decide whether to bring charges, on the basis of the proper tests and a real understanding of the military context.
	However, we have taken specific powers to ensure that the decision whether to charge and what charge should be brought is not made without the commanding officer knowing what is going on and having the responsibility of ensuring that the director is aware of any facts which the CO thinks may be relevant to the decisions which the director will be taking.
	It is worth giving a categorical assurance on that point. The power for the commanding officer to be kept informed and to provide to the prosecuting authority any information that he thinks is relevant will be set out in regulations under Clause 127. In particular, I draw noble Lords' attention to Clause 127(2)(e), which contains a power to require,
	"prescribed persons to be notified of prescribed matters".
	It is sensible to do that because commanding officers might have valuable information that could assist the prosecuting authority in the tests that must be applied before proceeding to charge individuals. We expect that COs will do this. They will see it as part of their duty to the individual and to the interests of justice to do so. Their training will reinforce that.
	Under the existing legislation, there is provision in regulations for the commanding officer to submit to higher authority any information that he has which, in his opinion, may be material to the institution of court martial or other proceedings. That applies after the charge has been brought. The Bill gives us, for the first time, the opportunity for the prosecuting authority to have information on the service context before a charge is brought.
	At present, the commanding officer also has a power to dismiss a charge—whether for a serious offence or not—without any form of hearing of the evidence. Under the existing law, the result of such action is that, even in very serious matters, no further proceedings may take place in the military system. No decision on the case can be taken by the independent service prosecuting authority, and the evidence is never tested.
	That is not necessarily the end of the matter because, at present, where our civilian courts also have jurisdiction, the civilian authorities may then take action. The jurisdiction of the civilian courts may come into play as a result of the services themselves being prevented from taking any further action on the matter through just such a technicality. We want to address that.
	The Bill will therefore ensure that the Director of Service Prosecutions will decide on serious cases, and that on serious cases a commanding officer cannot prevent further action by the services themselves, so we are removing the CO's power to dismiss charges without any form of hearing. I know that some see this as undermining the chain of command. I do not agree. It is simply wrong that, where there has been sufficient evidence to charge a soldier with a serious offence, the commanding officer can simply decide, without any hearing, that the soldier will not be tried for that offence, and that his decision then prevents any further proceedings in the military system. I do not think that commanding officers should have this responsibility, and nor do they.
	As General Sir Mike Jackson said in giving evidence to the Select Committee on the Bill in another place:
	"I would find it very hard logically to argue why a Commanding Officer should retain, or even have in the first instance, the power to dismiss a charge with which he cannot himself deal; that seems to me to be a matter that should properly go to court martial, for the evidence to be tested there".
	If we believe that service personnel are not above the law, as long as commanding officers have these powers the services will be open to the recourse to civilian law as in the Trooper Williams case.
	All offences can properly be dealt with under service law. The court martial is, and will remain, an ECHR-compliant court. We think it right that even the most serious cases should be resolved within the service system once proceedings have begun.
	Clause 115 puts a clear duty on commanding officers to ensure that allegations of other, less serious offences are appropriately investigated. That is an objective test. These offences make up by far the majority of those committed by service personnel. It does not necessarily mean that the investigation has to be carried out by the service police. It is for the commanding officer to call them in if it is appropriate. Some 95 per cent of matters are dealt with summarily now and we expect that to be the same under the Bill.
	I want to make it clear that, in the conduct of investigations, the service police work independently of the chain of command and of Ministers. They do a professional job, sometimes in the most demanding, difficult and dangerous circumstances. The Bill reinforces their relationship with the Director of Service Prosecutions in a similar way to their civilian counterparts. This should help to improve the quality and timeliness of investigations and reduce delay.
	Where the commanding officer is considering what action to take in respect of the offences over which he has powers, he will of course, as now, have legal advice available. Under the Bill, as now, he may choose to deal with the offence summarily, or he may decide to refer the matter to the prosecuting authority because he does not wish to exercise his summary powers and believes a court martial would be more appropriate, or he may discontinue proceedings. But that would not prevent further action by the services at a later stage, if it were justified.
	If the commanding officer deals with the matter summarily and finds the matter proved, he will go on to award a punishment. Again, this is familiar. Where he refers the matter to the Director of Service Prosecutions, it is the director who will decide whether to bring a prosecution and what the charge shall be. In all cases tried by the court martial, the Director of Service Prosecutions will determine the charge but it will be the commanding officer who formally brings it by notifying the individual concerned. This is important. It keeps the commanding officer directly involved. It reinforces his role by implementing his duty of care towards someone under his command who is subject to proceedings under service law. They must be properly supported and advised.
	The changes I have already described will bring improvements in speed and efficiency. At the moment, every case must first go to the commanding officer. He looks into the matter. In many cases he will ask the service police to investigate. If he thinks it should go to court martial, he refers it to higher authority in the chain of command. In turn, higher authority refers the case to the prosecuting authority.
	In another place some concern was expressed about the removal of the power for the Defence Council to review the findings and sentences of the court martial. This is the power for the chain of command to quash the court's finding or substitute another sentence which in their opinion is no more severe than the one awarded by the court. It is non-judicial interference in the decisions of a court martial, which is a compliant court, and it can no longer be justified, especially as there are now full appeal rights to the courts martial appeal court. The Government recognise that removing this power without providing for a "slip rule" to respond to technical errors in sentencing was a lacuna in the Bill. We have looked carefully at how we can rectify this while retaining service input to sentencing. But we wanted to ensure that the military input into sentencing was retained. The Government will table an amendment to achieve this in Committee. It is very closely based on the power of civilian courts under the Powers of Criminal Courts (Sentencing) Act 2000.
	The Bill creates two military courts—the court martial, under Clause 153, and the summary appeal court, under Clause 139—to replace existing courts provided for under the separate discipline Acts. The court martial will be a standing court and will replace courts martial convened on an ad hoc basis to deal with individual trials. Like the Crown Court, it will be able to sit in more than one place at a time and deal with different cases. It is not a single court in permanent session. The main advantages of a standing court are that it will be more efficient by reducing some administrative arrangements and making it easier to arrange for preliminary matters to be dealt with.
	We expect that in the main, service personnel will be tried by courts comprising members of their own service and that, as now, most matters will be dealt with by courts comprising three service members and a judge advocate, but five members or more for more serious offences. In addition, the Bill creates a service civilian court under Clause 276 to replace the standing civilian court that was established in 1976. Like its predecessor, this court may only sit overseas. It has powers equivalent to those of a magistrates' court when dealing with offences committed by those civilians who are described in the Bill as subject to service discipline. For the court martial and the service civilian court, the Bill creates a more modern and appropriate sentencing regime which primarily reflects changes introduced by the Criminal Justice Act 2003.
	I would like to turn to the provisions for dealing with the redress of complaints in Clauses 332 to 335. The rights and freedoms the rest of us enjoy are necessarily restricted in the case of service personnel. I think there can be no argument that, given these special circumstances, they should have a statutory right to make a complaint about any matter that affects them personally. Equally, we are committed to retaining the role of the chain of command in investigating and resolving complaints.
	We have known for some time that the current provisions for dealing with complaints of individual members of the Armed Forces are not working as well as they should. The chief complaint about the complaint system was the time taken to resolve complaints. But we have to acknowledge other problems with the current system. It is clear that individual servicemen and women have not had sufficient information or awareness about their right to make a complaint and how to go about it. There is too much evidence that individuals have been positively discouraged from making a complaint, or have no confidence that their complaint will be taken seriously, or think that making a complaint will have a detrimental effect on them.
	These issues were brought into sharp and difficult focus by Nicholas Blake's report. We want to address all these issues in the Bill. We think that the provisions, as they stand, together with a related proposal for a non-statutory but independent review of the redress system, go a long way towards doing this. So what are they?
	First, the Bill introduces a more streamlined system which will reduce bureaucracy and provide for the majority of matters that cannot be resolved by the commanding officer to pass quickly to a panel outside the chain of command with powers delegated to it by the Defence Council. We have provided in certain cases for a person who is independent of the chain of command, and not a civil servant, to sit on the panel. Whether an independent person sits on the panel will depend on the nature of the complaint; for example, it is unlikely that an independent person will add value if the complaint is about the quality of the food in a mess. But an independent could add value where the complaint is about a course of conduct or type of behaviour that amounts to bullying.
	A different panel will be convened for each complaint. The senior membership will never be below one star. The panel will have the full powers of the Defence Council for dealing with redress delegated to it, including financial powers. But the Defence Council will almost certainly reserve some matters for decision by the council or the relevant service board, for example, complaints against decisions by a service board or by a very senior officer, of three-star rank or above.
	These complaints may include cases where it had been decided that an officer's service was to be terminated as a result of administrative action, for example following a civil court conviction, or where a person had disputed an appraisal report completed by a three-star officer. In parallel, but on a non-statutory basis, we had initially proposed that the complaints process would be reviewed annually and publicly by an independent external reviewer. In response to Nicholas Blake's recommendation, and to representations made by Members during the consideration of this Bill in another place, we propose to go further.
	We will extend the role of the external reviewer to enable him to receive complaints directly from a service person or allegations from a family member or other third party. Where that happens, the commissioner will be able to refer the complaint or allegation directly to the right level of the chain of command, usually the commanding officer. That will trigger machinery so that if there is a complaint it will be investigated. Whatever happens, the commissioner will be informed of the outcome of that complaint.
	We shall table amendments to the Bill to make this appointment of a service complaints commissioner statutory. The commissioner would have direct access to Ministers. He would report annually and the report would be published. We believe that this system preserves the responsibility of the chain of command for investigating and dealing with complaints and allegations while offering a complementary route for complaints to be placed in the hands of the commanding officer. This may be of particular value to those who might feel inhibited from going directly to the commanding officer.
	A further area where we are harmonising and modernising provisions is in relation to boards of inquiry, or service inquiries as they will be known under the Bill. We think it is essential that the services keep the ability to hold internal investigations with the purpose of establishing the facts about an incident and making recommendations to prevent it happening again. It does not replace a coroner's inquest and is not, and does not purport to be, a tribunal that is compliant with Article 2 of the European Convention on Human Rights.
	As now, Clause 339 provides for much of the detail to be made in subordinate legislation. Again, this is an area on which Nicholas Blake made recommendations in his report. We agree with Mr Blake that families should be given as much information as possible about the proceedings and the findings. Family members may also attend to give evidence. But we would not wish to extend to next of kin or their representatives a statutory right to attend such inquiries, or to hold such inquiries in public. This would change the character of the inquiry, which is internal and focused on preventing a recurrence of the incident or accident, and would confuse the purpose of an inquiry with that of an inquest or court of law. As a result, a right of attendance would give rise to expectations which the inquiry would not always meet. We also have a concern to ensure that there are no inhibitions on witnesses that might affect the frankness of evidence. There are practical concerns, too, given how inquiries are conducted often very quickly and overseas. We also accept that there may be circumstances in which a family's attendance at a particular inquiry would be acceptable, when it would not impede its effectiveness. In these circumstances, we are content that some discretion about attendance may be exercised.
	We ask an enormous amount of the men and women of our Armed Forces, regular and reserves, and their families who support them. We place particular trust in commanding officers and the chain of command, as do those under command, and we take pride in the exemplary way in which they conduct themselves, sometimes in very difficult and dangerous circumstances. I think that we all share a common purpose. We want to provide the Armed Forces with a fair and modern service criminal justice system that will better support the way in which they train and operate today.
	I have mentioned two areas where the Government intend to bring forward amendments. We expect to table a small number of other amendments to clarify or improve existing provisions. I shall ensure that noble Lords are given these in good time. I look forward to the detailed scrutiny that we shall give the Bill in Committee and I commend it to the House.
	Moved, That the Bill be now read a second time.—(Lord Drayson.)

Lord Astor of Hever: My Lords, I thank the Minister for explaining what the Government seek to achieve by bringing forward this Bill. With a few important exceptions, we welcome the Bill. It has been very helpful to us during our consideration of the Bill to have had such clear Explanatory Notes, and the Minister and his colleagues are fortunate to have been so well supported by an excellent Bill team.
	The Bill has been changed and improved since its original introduction in the other place, and a number of sensible amendments proposed by my honourable friend the Member for Aldershot, as well as some unhelpful ones proposed by others, were resisted. We look to persuade the Government to change their mind here on some at least of the former and congratulate them on their resistance to the latter.
	As stated yesterday by the Minister for the Armed Forces, we in this House expect to be presented with further government amendments to provide for a services complaints commission; the Minister has just mentioned that. These amendments, when we have them, will be a qualified and partial step towards meeting the recommendations of Mr Nicholas Blake QC, arising from his carefully considered report on the distressing events that took place at Deepcut barracks. The assessment by Mr Blake and others of the important and difficult issue of harassment was accepted by the Government, but they have none the less avoided proposing legislation that might help. We have therefore prepared further amendments addressing that important issue.
	Similarly, the Government claim to have accepted Mr Blake's recommendations in relation to the "independent assurance" of,
	"the military justice system and the military complaints system".
	However, we want to know why the commissioner will not be embodied in the military system. We believe that it is essential that his appointment does not undermine the chain of command. Instead, the Government have expressed their intention to establish these military assurance and inspection systems under the civil Police and Justice Bill. Can the Minister clarify the Government's thinking on this point? In our view, military justice must be a wholly distinct and different process of its own. Thus the procedures for the assurance and inspection of the system must be properly and distinctively entrenched in military law—that is to say, in the Bill before us.
	At this stage, I shall make two points arising from Deepcut. First, both the government amendments and our intended amendments are a new area for consideration and scrutiny. Their terms have not been considered in the other place, so a particular duty falls on your Lordships' House to scrutinise them carefully.
	The second is that, by definition, they set out to change the present law as it is and as it was understood to be. Fortunately, this last consideration does not apply to much of the substance of the Bill. Its general purpose and effect is to re-enact in a consolidated form the main provisions of the three single service discipline Acts. This is a necessary thing to do and one that is seriously overdue. The old Acts had been so frequently and extensively amended that they had become unworkable and indeed unacceptable as foundation documents.
	That the special constraints and duties that apply to all members of the Armed Forces and to those civilians who live and work alongside them should be set out in a single coherent body of law is reasonable provided that the terms of such a body of law sensibly recognise that some circumstances alter cases. Nevertheless, there are fundamental differences between each of the services, and the Select Committee in the other place did recommend as a result of taking evidence that courts-martial panels ought to be composed of a majority of personnel of the service of the accused.
	It is surely self-evident that those of our fellow citizens who serve as members of the Armed Forces are exactly that—members of a lawfully armed and disciplined force. They have in appropriate circumstances to use force, including as necessary lethal force—a lawful power and duty in fact to kill. It is precisely that body of law that so authorises them and disciplines them in that exceptional power and duty which we now have before us for our careful consideration and adjustment.
	One thread in the debate cropping up at certain points in the Government's arguments, although heard more strongly from elsewhere, is that the process of military law should become as far as possible the same as the processes of civilian law—that an objective should be to assimilate. I have to say again that this logic—that one size should fit all circumstances—is not an objective that we share. Our objective is that the governing document of military law—this Bill when enacted—should properly recognise the unique features of military duty and should be drawn up and applied accordingly.
	Disciplined Armed Forces operate at all times within the law, but a law that clearly and properly recognises the exacting circumstances in which it has to apply. It is this rationale, the separateness of military justice, which will form a continuing theme in the amendments to the Bill that we will propose. We shall focus particularly on the need to protect the chain of command. That is, I believe, a common objective of all concerned with military justice and discipline. The Minister reiterated it in his Deepcut Statement in the other place yesterday. It is the feature of the Bill that has attracted the most attention among those serving today in the Armed Forces who have properly expressed their views to us and probably to many other noble Lords speaking this afternoon.
	To achieve that objective—a continuing, positive and undiminished role for the chain of command—a number of adjustments will need to be made to the Bill as it has come to us. We are concerned that the Government are eroding the powers of commanding officers. COs have to act. If they do not, they put their entire ship, regiment or squadron at risk. They have to make hard decisions, frequently based on imperfect information. If they get it wrong, they have to suffer the consequences.
	We cannot allow the creation of a culture in the Armed Forces, particularly the Army, where soldiers are too scared to open fire because they fear the threat of prosecution. British soldiers are trained to react instinctively to events. The Minister will be aware of the survey carried out at the end of last year by the Army within 7th Armoured Brigade in Iraq which found that there is a widespread fear of opening fire and of being investigated for opening fire.
	Armed conflicts—wars, to use the simple term—are usually conducted against opponents who reject what we see as the rules of civil society. That does not mean that we ourselves should reject those rules, but it does mean that our Armed Forces must be prepared and authorised to operate under rules that recognise that this may be, and indeed is likely to be, the case with their opponents. The job of the Royal Military Police requires diligence and common sense. It is the latter that appears in some cases to have been lost. Every "incident" has to be investigated for the possibility of prosecution, very possibly on the claims of the enemy or of those seeking financial gain. This law must recognise that the incident will always seem clearer in the artificial arena of the court of law than in the split second of reality that it took at the time. That is why we shall seek to insist that the Director of Service Prosecutions should have recent and relevant military experience. I make no apology for expressing my feelings on that with some passion.
	The Minister mentioned delays. Recent cases have shown that the existing system is disgracefully slow. I welcome the setting up of the Adjutant-General's delay action group, and I know that the Adjutant-General is working hard to cut down delays; yet very little in the Bill attempts to speed things up. We shall therefore table an amendment to chapter 2 of the Bill that sets time limits to proceedings to the effect that unless proceedings are brought from start of investigations to start of court proceedings within one year, the matter will be returned to the CO for summary judgment. We on these Benches intend to emphasise the importance that we attach to preventing the recurrence of such intolerable delays in justice by, if necessary, taking the opinion of the House.
	The recent acquittal in the court martial of Sergeant Selman and the other soldiers on charges arising out of an event that occurred more than three years before the trial opened is a striking example of the human dimension of what may, and maybe should not, arise in our system of military justice. It also understandably gave rise to strongly phrased expressions of concern that the acquittals meant that the prosecutions were wrongly undertaken in the first place. The noble and learned Lord the Attorney-General, writing in the Daily Telegraph, has defended the process in equally strong phrases. But it is the duty of the Opposition when a succession of such high-profile cases fail to test rigorously whether, in reaching the decision to prosecute, correct procedures have been established and correctly followed and proper tests properly applied. The Prime Minister said last week that he hoped that lessons would be learnt by the prosecuting authorities. This is not the time or place to go into detail, but I draw the attention of the House to the set of 10 Questions for Written Answers that I have tabled. I hope that they will receive candid rather than shuffling or evasive answers. They go to the working heart of the system that this Bill creates.
	Another widespread view that has been expressed to us is that the replacement of serving uniformed officers by civilian communication experts—or spin doctors by another name—as public spokesmen for the Armed Forces has led to damaging consequences. We believe that a return to the earlier practice would assist better and more direct understanding of the Armed Forces, and we shall support any suitable amendment in that sense. My noble friend Lord Kingsland will cover the supervisory role of the Attorney-General, and my noble friend Lord Campbell of Alloway has an amendment on that issue. I hope that the noble and learned Lord the Attorney-General will respond on this issue in Committee. He ducked out of our debate last July. Defending the Government's ban on hunting was placed higher on his list of priorities than were the interests of our Armed Forces.
	Other amendments that we will bring forward include placing the rules of engagement on a statutory basis, which is not the case at present, and giving statutory basis also to the Manual of Military Law. We shall be looking, too, to see whether some of the procedures in military law and justice pioneered in Australia may be of value.
	We have a wealth of experience in our speakers' list, from all sides of the House, and I shall listen carefully to all that is said. I hope that the Government will do the same—listen carefully, even when they are initially disposed to disagree, and that, out of our deliberations today and subsequently, a Bill will emerge that meets our limited, but specific, concerns, as well as serving the general purposes on which we are all agreed.

Lord Judd: My Lords, it is always a challenge and a privilege to follow the noble and gallant Lord, Lord Bramall. There can be few debates in this House which enjoy such a formidable body of distinguished, direct and relevant experience as we have with us today. It is good to be able to hear at first hand so much insight, experience and honest advice.
	As a layman, albeit a former junior officer in the Royal Air Force and a former defence Minister, I am glad to be able to take the opportunity presented by this debate to pay unqualified tribute to our servicemen and women, to the civilians who work so closely with them, to our service families—especially the bereaved—and to Ministers who carry so much responsibility on our behalf. The courage and sacrifice speak for themselves. We must never take them for granted. They bring home to us every day our own heavy responsibilities.
	It seems to me therefore essential to put the issues raised by this Bill in a wider context. The starting point in any objective consideration of defence issues is surely the nature of the threat. We then have to examine honestly the nature of the resources—personnel, equipment and organisational structure—that we have at our disposal and assess how far they meet the challenge.
	If the nature of the threat changes, radical responses may be necessary. Long established traditions and patterns of expenditure may prove inappropriate. Not to be honest about that—it can be very difficult—is to fail the country, to betray our servicemen and women and to waste public funds which could be put to better use. The unforgivable political crime is to initiate military action for which adequate and appropriate resources are not available. That can aggravate pressures and tensions which become acute with direct implications for discipline and justice.
	The world which confronts us in 2006 is highly complex. It is not, I would argue, more complex or dangerous than in the earlier years of many of us in this House, but with the end of the stark and clear confrontations of the overarching Cold War, the complexities have become more obvious. One of my uncles, a captain in the Indian Army, was killed in an uprising on the North-West Frontier in the early 1930s, having previously served in Baghdad. The present complexities have deep roots in history. These complexities were masked by the Cold War, but they remained as real as ever. The availability of highly lethal, flexible, orthodox and unorthodox weapons—whatever in reality can now be regarded as a valid distinction between the two—has added a sinister dimension to the dangers.
	From the private to the general, from the sailor to the admiral, from the airman to the air marshal, in the face of the complexities that I have described the demands are immense. They are not likely to diminish. That is the context within which we must approach our deliberations on military discipline and justice. It is not simply a matter internal to the services. It has far-reaching consequences for the political reality within which we expect our services to operate and for the political solutions we seek to crises across the world.
	A disciplined fighting force, such as we have seen in the past few days in Afghanistan, whatever the wider role—I trust that the planners have allowed for this—is as vital as ever. But other qualities are at least as vital at all levels of command. Diplomatic negotiating skills, humanitarian sensitivity and an instinctive commitment to human rights are essential weapons in the battle for hearts and minds. It must surely be clear to all of us that in the struggles with which we are confronted there is no escape from the reality that they are about a battle for hearts and minds. Peace has to be built: durable peace simply cannot be imposed. That is abundantly clear on every front.
	When things go wrong, when there are abuses, it is not just that they contradict the values for which we so vehemently claim that we are standing—of course, that hugely matters; it is that they play straight into the hands of propagandists for the extremists. To call a spade is a spade, such lapses are treacherous. This is the hard-headed truth. The weak and dangerous argument is that which rationalises and endeavours to explain away. To do that is to remove the ground from under the feet of every serviceman and woman who understands the nature of the challenge and who is endeavouring—often in the face of acute and cruel provocation—to meet it.
	It is argued that those we fight do not observe the same standards. That is abundantly and sickeningly obvious. But that is precisely why we have to be consistently, transparently and invariably about something different. To falter is to play for the other side.
	The Bill is about discipline and the administration of justice. I welcome much of it, not least the bringing more closely together on an inter-service basis the systems we have in place. But as we consider it, we shall have to have in mind how far it meets the requirements of transparency, of justice being manifestly seen to be done. It is necessary to weigh all the time the underlying culture and the adequacy of resources both in the judicial arrangements and in the service police. The importance of demonstrable, tough-minded objectivity cannot be over-emphasised.
	I enjoy the writing of Max Hastings. He is one of the more impressive journalists. Would that there were more of them. He makes me think. But I am not always completely convinced by his conclusions. The other day, he was arguing that it is not possible to expect young men and women, who are recruited to fight and to kill, to give priority to hearts and minds concerns. My contention is that if we fail in our recruitment, training and leadership at all levels to prepare our service personnel for the dual tasks—and they must be effective fighters; they cannot just become social workers in uniform—we are contributing to our own ultimate defeat. It is often what ordinary people encounter in the immediate incident which can have a seriously counter-productive—or, indeed, a significant and positive—consequence.
	Leadership, training and ethos are crucial. Systems of judicial administration, however theoretically perfected, are fairly useless without that context. Indeed, they can engender cynicism. We have to be careful lest, in any imposed methodology for what might be called corporate military ethics, we do not inadvertently undermine the role of leadership. The commanding officer, the NCO who is a living example of the fight for values, is worth any number of lawyers and judges.
	Before I conclude, I should like to refer specifically to Clause 8, which received a certain amount of necessary attention in the other place. I hope my noble friend will be able to convince us that this clause has been drafted with an objective long-term view and not because of the disturbing number of deserters and those going absent without leave in the context of the conflict in Iraq. The penalties are potentially draconian. Life imprisonment is a heavy sentence. Conscientious objection is a precious right which is central to the values we proclaim. We must never jeopardise it.
	In volunteer services, however, people volunteer to serve the nation in whatever way the nation requires. A central question is whether conscientious objection can then apply to a particular situation in which a volunteer is expected to serve. Of course, the principles laid down by the British and Americans in the post-Second World War Nuremburg trials are relevant. A serviceman or woman should be expected to refuse to carry out an order which he or she knows to be illegal. Such refusal should have our complete and unqualified endorsement. When it comes to participating in the occupation of a foreign country or territory, this makes it imperative that such an occupation is authorised under international law.
	The occupation of Iraq was, however reluctantly, post facto authorised by the UN Security Council. But to pretend that an argument does not still exist about the original action and occupation is perverse. I, for one, remain convinced that there should have been an ad hoc specific UN Security Council authorisation—not a subjectively interpreted authorisation cobbled together from past resolutions. This mattered in the cause of the international rule of law, but it also mattered in terms of global political credibility and the battle for hearts and minds. The collapse of the argument put forward in favour of the need for action—the absence of weapons of mass destruction—reinforces the issue. If Clause 8 is to apply, it would surely be appropriate to have explicitly on the face of the Bill a reference to an occupation authorised by the United Nations and under international law. What my noble friend has to say about this in his reply will be very significant.
	I conclude as I started, by taking this opportunity to pay tribute to our services—the men and women and their courageous and anxious families who serve on our behalf.

Lord Ramsbotham: My Lords, I thank the noble Lord, Lord Drayson, for the considerable efforts that he has gone to in the past weeks to brief my ex-military colleagues and I on the progress of this Bill. We have appreciated greatly the trouble that he has taken. Like many other noble Lords, we are generally very satisfied with the great majority of this Bill. However, I am extremely glad that the noble Lord, Lord Drayson, mentioned his concern about delay, because that must impact on everything to do with military discipline.
	I am conscious that when one is talking about a military matter at the moment, one has to be aware of three factors affecting the selection of the aim, as it were, if you are looking at it in a military context. First, there is a tendency to think that the retired military officers represent the "old and bold" and the reactionary, as opposed to the modern people who are facing completely different challenges. That is not wholly true, because the challenges basically boil down to persuading people to do what they do not necessarily want to do on behalf of the country. Secondly, there is the danger of extrapolating emotion out of highly publicised events, such as Deepcut, the Trooper Williams trial, the 3 Para court martial and the case of the guardsmen, as well as the forthcoming matter of the Queen's Lancashire Regiment, as opposed to focusing on the needs and everyday requirements, many of which will not be discussed in emotive circumstances. However, I have to say that many members of the Armed Forces will be looking with great interest to see what action is taken against the policemen involved in the shooting in Stockwell, having observed what happens to soldiers who open fire in Iraq.
	Finally, we are very conscious that fewer and fewer people actually understand why the Armed Forces need a separate military discipline code. That was extremely well summed up by the Judge Advocate General, Judge Blackett, in his evidence to the House of Commons Select Committee. He said:
	"There are cogent reasons for maintaining a unique system of military justice, separate and distinct from the civilian system. These are to . . . support operational effectiveness and morale . . . maintain discipline which is an essential element of command . . . reflect the special and unique nature of the Armed Forces, in which sailors, soldiers and airmen are required to use lethal force to support Government policy, to risk their personal safety, and to be prepared to lay down their lives for their country, and . . . extend the law of England and Wales to personnel serving overseas and outside the jurisdiction of the civilian courts".
	Armed with that when I look at this Bill, I join with the comments of my noble and gallant friend Lord Bramall and the noble and learned Lord, Lord Mayhew. There are two aspects of particular concern. First, there is the maintenance of the position of the commanding officer and, secondly, there is our concern about the military experience and expertise of those who are to act in the prosecuting authority in various positions. A point that has already been raised by my noble and gallant friend Lord Bramall concerns commanding officers' involvement, once a case is taken out of their jurisdiction by the service police and the prosecuting authorities. The requirement that the commanding officer must be kept informed of what is going on should be accompanied by the enablement of the commanding officer to make representations to those people involved at the time to ensure that all the military factors, or any factors that they may need to know, are actually there. This is not contained in the Bill, and it should be teased out during Committee.
	As the noble and learned Lord, Lord Mayhew, said, it is very difficult to be precise about what you mean by "military experience" in terms of the Director of the Service Prosecutions. Could he have been a platoon commander in an infantry battalion? Could he already have served as a prosecuting authority in a junior capacity? We need to be more specific than merely listing the legal qualities required, because he may have to make military judgments on cases that come to court.
	One or two other things concern me about the Bill in its present state, relating to the fact that a number of other issues were not satisfactorily discussed in the other place before they came to your Lordships' House. For example, Clause 154, on single service panels, has already been mentioned. This is a tri-service Bill, which is fine; there will be many occasions when you need tri-service justice because you have all three services together. But for the vast majority of the day, individual servicemen and servicewomen will serve in their own service and that is all that they will see. Therefore, it is very important to ensure that single service justice panels are continued.
	I know that a very large number of amendments will be tabled to the Bill, and here I thank the noble Lord, Lord Astor of Hever, for the enormous effort that he and his research staff are putting into this, which he has been sharing with my noble colleagues. When the Minister looks at the speeches and suspects that there may have been collusion between the 34 stars mentioned by the noble and learned Lord, Lord Mayhew, he is absolutely correct—and I assure him that that collusion will continue.
	I have three particular concerns. First, the House of Commons Select Committee report on the Armed Forces Bill mentioned one particular concern that it expressed to the MoD. It says:
	"We expressed our concern to MoD that we had not been provided with more detail of the proposals likely to be in secondary legislation, without which we have not had a complete picture of the legislation's proposals. We understand that MoD intends to produce more details before the conclusion of proceedings on the Bill in the House of Commons . . . We urge the Government to provide more detail on the proposals that will be included in subordinate legislation and how they will work before the House of Commons completes its consideration of the Bill".
	That point has already been made to the Minister in the deliberations that I mentioned earlier, but it is enormously important that some of the things stated in the Bill more as a generality are spelt out in detail, particularly for the future, because the detail may be lost. For example, it needs to be spelt out that the commanding officer may make recommendations during the process rather than treating it as a matter of, "Someone said some time that it could be". That is important.
	Secondly, it has been quite clear that the image of the military has been taking something of a bashing in the media, particularly over high-profile cases. I am extremely glad that the noble Lord, Lord Astor, mentioned the resurrection—or the hoped resurrection—of the post of director of public relations for the individual services. I have to declare an interest in this because I was the Army's director of public relations during the Falklands war, so I know something about what is involved. However, the job of government information service people is connected more with Ministers. By removing the service directors of public relations, you remove people who are involved with the protection and the projection of the image of the Armed Forces. If I were director of public relations now, I should have already been preparing how I was going to limit the damage that will be caused when the Queen's Lancashire Regiment commanding officer is arraigned in September, for example. Some of the recent problems in Iraq, I believe, could have been better explained if someone in uniform was responsible for discussing the issue with the media, and then no more will this be involved with the legal cases that I think will come before us.
	Finally, I hope that when timings are prepared for the furthering of the Bill, there will be sufficient time in Committee to cover all the amendments that come out, rather than just sending something incomplete back merely because we have run out of time.

Lord Guthrie of Craigiebank: My Lords, in general I welcome the Bill. I thank the Minister and his team for the trouble they have taken in briefing us on the progress of the Bill. Thank you very much indeed.
	This Second Reading is happening at a very difficult time for our services. They are involved in operations in Iraq which for many people in our country, perhaps the majority in our country, are unpopular. For the first time in my own experience the services do not have overwhelming backing for what they are doing, although the country is still supportive of the services themselves. The new commitment to Afghanistan will, I think, pose further difficulties, may continue for a very long time and could become as worrying as Iraq. I do not think that we can guarantee to have support if the operations appear to be going wrong. I think that the services know that and are very concerned.
	Our services need a discipline Act that they can believe in, one which reflects and understands just how difficult it is to take part in military operations and the challenges that the services face. The structures they need are in many ways different from those in civilian life. What they need must be understood. I am still not sure if many in the Government, in Parliament and the legal profession begin to understand that, despite their assurances that they do. There seems to be less understanding than there has been for many years. There is still a feeling in some circles that service law should be the same as civil law. That cannot be right if we are to have effective fighting forces. I think it illustrates the lack of understanding that I am talking about.
	The bond between the commanding officer and his or her unit is of great importance. I was very relieved to hear what the Minister had to say about the service police and the commanding officers. I and others did not interpret what is currently written in the Bill as quite saying that. We were concerned. I hope it will be absolutely clear when it is looked at again.
	I can well understand why a single Act, as opposed to separate service Acts, brings benefits. It is much more convenient to have one Act. However, we would be very wrong to forget and not to recognise why we have had three different Acts. We should be very careful. I agree entirely with what the noble and gallant Lord, Lord Bramall, said on this subject. The Acts reflected the nature of the services, the different environments they fight in and the way they go to war. There are many differences. For example, in the Royal Navy the captain of a ship is the man who decides whether to go into action or avoid action. The ordinary seaman has little choice; once the captain has decided which course to sail on, he cannot run away. In the Royal Navy, only a minority of officers and crewmen close with the enemy and have to place themselves in mortal danger. The Army is different and, I think, is rather more complicated. A far higher percentage of officers and men go into battle and have the opportunity to run away. It is important that, when and where necessary, services are different. That needs to be recognised. For example, the composition of the courts-martial boards is highly relevant.
	The services need to have confidence, as other noble Lords have said, in the Director of Service Prosecutions. I entirely agree with what the noble Lord, Lord Astor, said. It is difficult to define "military experience" but it is surely much more than just having a senior military rank. Having a civilian in this important role would be quite wrong and damaging.
	Lastly, over the past few years we have been in danger of our services becoming risk averse. The noble Lord, Lord Astor, referred to a recent survey. We must be very careful that servicemen do not become frightened to take the necessary actions on the battlefield. We know that some soldiers have been nervous to squeeze the trigger when they needed to. The Act must continue to recognise that it has great responsibilities for operational effectiveness. I think that much work needs still to be done in Committee to reassure the services. As the Minister, the noble Lord, Lord Thomas, and others have said, the services need complete clarity on what the law is.

Baroness Dean of Thornton-le-Fylde: My Lords, I, too, welcome the opportunity to discuss this long awaited Bill. I would also like to thank the Minister, his predecessor, my noble friend Lord Bach—who was in his place a short while ago—and the MoD Bill team, headed by Mrs Teresa Jones, for their valiant efforts over the past two years in trying to keep noble Lords up to date with the various debates on and guises of the Bill.
	The Bill's overall intentions are to be welcomed and many noble Lords have already done so. It is 50 years since the discipline Acts of the three services were implemented in the 1950s. Since that time, society has changed beyond recognition in so many different ways. The Armed Forces themselves have changed. There is much more bi-service and tri-service co-operation and operations today. A disciplinary Act is needed that covers all three services while at the same time recognising the unique culture in each of the three services—or, as the noble and gallant Lord, Lord Boyce, discreetly said before the Select Committee, the tolerable variations between each service.
	The Bill was referred to the Select Committee in another place and that committee's considerations were in public. I welcome both those aspects, which have certainly been helpful in understanding this wide-ranging Bill. The rigour of the committee's considerations has helped a number of us when reading the reports and the evidence given to the committee. The Armed Forces are distinct from other parts of society. The work and the commitment that our forces pledge to the nation—sometimes people have to give their very lives—make it paramount that there is a separate system of service law and discipline to that for civilian folk. That is the basis on which I approach this really quite complex Bill.
	I wish to address some key parts of the Bill. Chapter 3 covers desertion, which has been referred to by my noble friend Lord Judd but no one else. The clauses are a considerable improvement on what we have at the moment, and I welcome those improvements, but that is not surprising, since the disciplinary Acts written 50 years ago were bound to be very different from what we would expect today. However, I need convincing that a maximum of a life sentence is necessary for desertion. I do not agree with my noble friend Lord Judd that we would invite people into the services and then go around encouraging them to be conscientious objectors, which is the complete opposite of the intention. However, I need convincing that a maximum of a life sentence is necessary for desertion.
	Appreciating and understanding the military context is essential to the administration of a fair justice system in the Armed Forces, and key to that is the commanding officer. Clauses 52 to 54 relate to the role of the commanding officer, which has been referred to already in the debate. I understand the logic in the Bill, and I understand the evidence that was presented in another place. I also understand that it was accepted that the commanding officer will be kept "in the loop". I am not too sure what that means in a disciplinary context.
	There is a reference in Clause 127 to giving power to "prescribed persons" to be notified of "prescribed matters". The Minister referred to that in his opening remarks. Will he confirm that the words proposed in regard to the commanding officer being "in the loop", so to speak, will be in the Bill? If they are there, as I hope they will be, just what involvement will the commanding officer have? If the words are not in the Bill, will they come forward in secondary legislation during the passage of the Bill through this House, so that we have an opportunity to consider them?
	Chapter 2 deals with time limits. If there is one area where this Bill could help, it would be to shorten the time that the process of the system of discipline takes—the whole process, not just getting to the point of charging. As we have seen in all too recent cases, quite often it is the time that the process takes that causes the stress that has such a damaging impact on the service personnel concerned, their families and sometimes the wider morale of their colleagues in their unit back at base. I welcome Chapter 3, which covers double jeopardy. Trooper Williams is the often quoted example, but this is not legislating for a one-off situation; that would be bad legislation. Other parts of the Bill will help, but this chapter is very important.
	In Part 18, Clause 358 is one of the most critical parts of the Bill. It provides for the position of a Director of Service Prosecutions, but it does not provide that the person appointed must be either a serving officer or have military experience. I have read with interest the evidence given to the Select Committee in another place, and I have followed the various briefings from the MoD. I understand the difficulties about getting the right wording in the Bill, and I agree that the core must be that the best person for the job should be appointed. But, with my limited experience with the Armed Forces, I cannot believe that it is not possible to guarantee that the Director of Service Prosecutions has both legal and military experience. In fact, I think that that is essential, not least because we are talking about the confidence of service personnel in the process and in the people involved in it who are meting out the decisions affecting their lives. The Minister may, I believe, recognise that there is an issue here, and I ask that in winding up he will give an indication of how he intends to address this in Committee.
	All Bills have secondary legislation, and this one perhaps more than most. Mr Humphrey Morrison, director of legal services at the MoD, in describing the scale of the task of drawing up the statutory instruments relating to this Bill, said:
	"It is a big project".
	That is perhaps one of the best understatements that I have heard in a long time. As I am sure the Minister recognises, it is important that the various pieces of secondary legislation relating to this Bill come before us as the Bill progresses through this House. It is important that the Bill does not leave this House without the principal components that will be covered in secondary legislation being put before us for consideration and discussion.
	There is much to welcome in this Bill. Much of it will give support both to operational effectiveness and to the confidence of personnel in the system. But some of the changes that are needed—which have been highlighted in this debate and are derived from the work of the Select Committee—will in the end, of themselves, determine just how successful the Bill will be in meeting what is expected of it.

Earl Attlee: My Lords, I am grateful for the Minister's detailed introduction of the Bill. I remind the House that, as we speak, I am a serving officer in the TA and am subject to the service discipline Act. I have been subject to summary jurisdiction myself. I lost a camp bed, and a squadron sergeant-major who was responsible for that 30 years ago is one of my best friends. I have also had to exercise summary jurisdiction, and I have served on some minor courts martial.
	We on these Benches have been asking for a single-service discipline Act for many years. I cannot recall serving on a recent exercise or operation when members of other services were not serving alongside me. At this stage, there is not much new for me to say, but I have a few observations.
	The noble Lord, Thomas of Gresford, queried single-service courts martial. I rather share the view of the noble and gallant Lord, Lord Inge, so I am not sure that I am with the noble Lord on that. However, I am much more interested in his comments about majorities on courts martial. My noble and learned friend Lord Mayhew talked about how little evidence there was in the Williams case. My understanding is that there was rather too much evidence. Apparently, the corporal in the Royal Military Police made three different statements, and I am confident that the noble Lord, Lord Thomas of Gresford, would lick his lips at the prospect of cross-examining the corporal in order to determine which statement the court martial was to believe. Clearly, legal advice received by the commanding officer was absolutely right in the first place, perhaps even if the last statement was accurate.
	The noble Baroness, Lady Dean, was quite right to caution your Lordships about using the Trooper Williams case to measure the Bill against. If matters go so wrong, however, it is not surprising if there is significant parliamentary activity, much of it directed at the noble and learned Lord the Attorney-General.
	Many noble Lords have talked about delay, and I agree with everything that has been said. I certainly look forward to pursuing the amendments about time limits. Not only would they be fairer to the suspects, they would also be fairer to the victims. A short flash-to-bang time is also valuable for maintaining our disciple—surely our objective. Furthermore, if there are time limits, it is much more likely that the necessary resources will be put in place to achieve them. However, it is important to remember that certain types of cases—fraud comes to mind—will require much more time to investigate.
	There is good news: we are seeing signs of increasing military experience in managing the legal aspects of current operations. Clause 8 covers the offence of desertion. Many noble Lords will have received briefing on it, and I suspect a lot more is on the way. The other place expended much effort in considering this aspect. I hope that we do not expend quite so much. Members of the Armed Forces do not expect to be able to pick and choose which operations they are deployed on. They know that it is not their duty to determine the desirability or legality of any particular operation. However, there is nothing wrong with them considering and debating the matter among themselves. It is for Government and Parliament to make the decisions. However, it is a little disappointing for the Armed Forces at the conclusion of the Iraq conflict, which was over weapons of mass destruction, when none was found. It makes the operation of questionable legality, a point made by the noble and gallant Lord, Lord Vincent.
	I am grateful that the Government have already agreed to retain the annual continuation order. That is an important and highly desirable safeguard, a check on the Executive. We frequently debate defence matters these days, but when I started in your Lordships' House in 1992 we rarely did. The first Gulf War was over, and the campaigns in the Balkans were only just starting. Hopefully, one day our Armed Forces will not be so busy, and your Lordships will not be required to devote quite so much attention to matters of defence and security.
	The noble Lord, Lord Dubs, properly and skilfully raised the issue of First World War soldiers shot for military offences. I can think of few military justice issues that are as difficult to determine. I would be happy for the noble Lord to pursue his amendment, if only to enable me to carefully re-examine my current position that we should do nothing.
	In all three services, disciplinary problems can also be dealt with by administrative action rather than a prosecution under service law. My concern is with it becoming increasingly difficult to use summary jurisdiction, administrative action is being used instead. An obvious example is the loss of an identity card. I have taken summary jurisdiction action against my soldiers for losing their ID card. I had to do it once, and I never lost an ID card again. In using administrative action, there is no attempt to determine whether the soldier has failed or just been unlucky.
	Action can, in certain circumstances, be quite tough, however. It can include the termination of a career, even when just short of the pension point. That does not sit well with the concept of unlimited liability. I will read Hansard carefully, because I believe that the Minister touched on this problem and am sure that it will bear further scrutiny.
	The Bill seeks to improve the service grievance procedure. There is plenty of space for this. The Blake review proposes a commissioner for military complaints. The Government have responded to that report commendably quickly. I have yet to study that response, but am sure that it will result in plenty of debate during the passage of the Bill. We will have to look closely at the mischief a commissioner is to rectify. If he is to identify criminal activity such as Skinner's, it might not work since the victims would be understandably reluctant to report such attacks to anyone. I take it that we will see these amendments tabled before Committee stage. I will be pursuing numerous amendments as part of our scrutiny of the Bill at later stages. I hope that the Minister will have a good answer to each.
	Members of our Armed Forces perform fabulously well. The legislation underpinning their work must be just as good. I am sure that all noble Lords will seek to achieve that.

Lord Boyce: I thank the Minister for introducing this important Bill, and I welcome his intention to table an amendment to introduce a slip rule. My only ancillary comment on that is to ask him if he will confirm—I am not quite sure whether he did so in his opening speech—that lay members, in other words, service members, are involved in any reconsideration of sentence. Even if there is only a technical error, while that is a trigger to reconsider sentence it is vital that there is service input to the re-sentencing exercise.
	By and large, I welcome the Armed Forces Bill. It does much to modernise the single service Acts and to bring them together. However, we should not be seduced by the line that is sometimes paraded that the so-called "joint environment" is a sufficient basis for the Bill. I am glad that the Minister avoided saying that. We need to remind ourselves that the vast majority of our soldiers, sailors and airmen—more than 80 per cent—will serve their entire career in their own single service environments, whether on peacetime or wartime operations. That seems to be lost on a lot of people and on some Members of this House.
	I have some regret about the powers that Royal Navy commanding officers will lose as a result of the Bill, but as the Minister implied, that can be lived with, particularly in view of the fact that the powers being taken away have been used only rarely in recent years.
	On a more positive note, I welcome one particular aspect of the Bill mentioned by the Minister other noble Lords: the efforts to deal with delay. The totally unsatisfactory delays in bringing people to trial that we have seen, such as in recently well publicised cases, are dehumanising, demoralising and bad for operational effectiveness. They must be eliminated.
	Moving from the general, I want to concentrate on two particular areas on which the Bill bears: the chain of command and service ethos. I make no apologies for knocking these particular nails out of sight. The maintenance of both of them is essential to the fighting effectiveness of our Armed Forces, who, contrary to some who would aver otherwise, are different from the rest of society. As such, and as the Bill broadly provides, they must have a unique system of military justice separate and distinct from the civilian system. My noble friend Lord Ramsbotham read out the four issues that the Judge Advocate General articulated to support the point, and I shall not repeat them. I am very glad to see those four points laid out in the Short Guide to Sentencing in Courts Martial that was published by the Judge Advocate General at the beginning of this month.
	However, having implied that I am broadly content with how the Bill sits with all these points, I have residual concerns. I shall deal first with the chain of command. As I said in this House 11 months ago, the commanding officer, who has total responsibility for command of his ship or unit, must in turn be responsible for, and implement, its discipline. It is impossible to achieve and maintain the necessary level of discipline unless those who are under his or her command are in no doubt that their commanding officer has authority over them. In this context, I worry about the authority that the Bill provides for the service police to approach directly the Service Prosecuting Authority for Schedule 2 offences, in theory with the right to bypass the commanding officer.
	I do not hold out much hope of persuading the Minister to change the Bill to satisfy my concerns in this matter. However, providing such an authority could undermine the commanding officer's authority, and I welcome the Minister's explicit reassurance on this matter. Will he ensure that the "prescribed matters" to which Clause 127(3)(e) refers, when defined in the regulations, make it clear—the noble Baroness, Lady Dean, alluded to it—that, in all cases instigated by anyone other than the commanding officer, there is a duty on the service police to notify the commanding officer of any investigation under way, of the progress of that investigation and, if they extend the scope of the investigation and the case is passed to the Director of Service Prosecutions, of the progress of the case? The regulations should explicitly require the Director of Service Prosecutions to be notified of relevant information such as the operational context within which the alleged incident occurred. I recognise that the Minister mentioned this, but I was not quite sure from his introduction that the point would be driven hard in the supporting regulations.
	On the single-service ethos, I raise two points relating to courts martial that need to be addressed. First, the Judge Advocate General told the Armed Forces Bill Select Committee that it would be illogical for the panel of a court martial to be retained from the single service of the accused and that the default should be a mixed panel with just a senior lay member from the same service as that of the accused. I have real difficulty with this and believe most strongly in the importance of ensuring that the regulations governing the composition of courts martial stipulate that lay members be drawn from the same service as the accused. I am afraid that I have some difficulty with the line taken by the noble Lord, Lord Thomas of Gresford. If co-accused from different services are before the same court, at least one member from each service should be represented in the dock. I think that I was reassured by the Minister saying in his introduction that he supported this view.
	My second point arises from the suggestion that the bulk of courts martial in the United Kingdom might take place in one of the three new Army centres—Bulford, Colchester and Catterick. This is short-sighted for two reasons. First, it is extremely important that justice is seen to be done in the local community where the offence occurred—by "local community", I mean service community as well as geographical community. Secondly, the court martial system is designed as a deployable system of justice and should therefore be focused on key areas of service activity, which must include Scotland and the south-west.
	The next issue that I want to raise has been well aired this afternoon. It relates to the qualifications of the Director of Service Prosecutions. It is not enough, as the Minister said it would be, for the director to have a sufficient understanding of the services. The Director of Service Prosecutions must have relevant uniformed service background. This is not stated in Clause 358 and an amendment might be appropriate. I would be grateful if the Minister would elucidate what other criteria would be applied in the selection of the DSP. Who will be involved in that selection? What role will the Attorney-General play in it? My noble and gallant friend Lord Vincent voiced similar queries.
	I wish to raise one further area of concern which is separate from ethos and the command chain, but which affects both: the readiness of the Armed Forces to implement this Bill in 2008. A significant number of references are made in the Bill to regulations. Although most of them, I expect, will be non-contentious, a number are extremely important; for example, what exactly is to be included in the "prescribed circumstances" in Clause 127(2)(c), which relates to the duty on commanding officers to inform the service police in Clause 114? This is particularly relevant, not least given my and others' concerns about the important role of the commanding officer.
	Due to the scale of change which the Armed Forces are being asked to absorb, it is important that all regulations are made sufficiently early to ensure that commanding officers, service police and others can be properly trained in their application. Given the scale of change represented in this Bill, I fear that the 2008 implementation date may already be too challenging, and there are strong arguments for a staged approach in some areas in advance of full implementation of the Act to ease the process for commanding officers, service police and disciplinary staff. When will we see these regulations?
	As I have said, I greatly support the Bill, but I ask the Minister to take on board the points that I have raised to give confidence to our sailors, soldiers and airmen that the importance of the command chain and service ethos is recognised in full.

Lord Borrie: My Lords, just over 10 years ago, the European Court of Human Rights ruled that this country's court martial system did not comply with Article 6 of the European Convention on Human Rights, which guarantees anyone charged with a criminal offence the right to a hearing before an impartial tribunal. The matter was soon remedied by the Armed Forces Act 1996, which, among other things, provided for a legally qualified prosecuting authority and made the legally qualified Judge Advocate General a member of the court. That Bill was enacted by a Conservative Government, so it is a little surprising to note that, on Second Reading in another place, the Conservative Member of Parliament for Canterbury referred to this Bill as continuing,
	"an ugly trend towards civilianising the military world".—[Official Report, Commons, 12/12/05; col. 1176.]
	I follow the noble Lord, Lord Astor of Hever, the Conservative spokesman, and the noble and gallant Lord, Lord Boyce, the previous speaker, in saying that we need a separate system of service law. That view is perhaps common to us all in this House. However, this Bill continues what I will call the desirable trend, through a number of Governments of different political colours, of making the separate system of service law fairer, more independent and, as time goes by, more appropriate for the service men and women of the 21st century. I am sure that the noble Earl, Lord Attlee, will agree with me in tracing that trend to the last year of his grandfather's Government in 1951, when, for the first time, an appeal system was introduced against the findings of courts martial.
	I do not think that I have heard it said today that the Bill gives a remarkable universal right to anyone who is charged with a criminal offence to elect trial by court martial instead of being tried summarily by their commanding officer. It also creates a more professional, single-standing court martial composed of three persons, five persons or possibly more, which is to be determined by regulation. I would welcome any information and clarification that my noble friend can give on the criteria for saying that the court martial will be of any particular size.
	My interest in the court martial system dates back more than 50 years to the Korean War when, as a newly qualified barrister, I found myself attached to the Directorate of Army Legal Services for Japan and Korea. I must admit—I hope that none of the noble and gallant Lords who have spoken today will disagree too much—that there was what I would gently call an "amateurish" approach to the appointments to individual courts martial, which this Bill seeks to change. What I remember observing all those years ago was really not worthy of a modern Army.
	Like the noble Lord, Lord Thomas of Gresford, I note the most interesting advice and views given by the present Judge Advocate General, Judge Blackett, to the Constitutional Affairs Select Committee of another place. He was critical of the military members of the court martial having any role in sentencing. Perhaps unusually, I found myself in agreeable accord with the noble Lord, Lord Thomas of Gresford, on Judge Blackett's suggestion that the members of the court, other than the Judge Advocate General, should be treated like a jury in a civil court, which has no role in sentencing. If there are particular military or Ministry of Defence considerations that affect or perhaps ought to affect sentence in their view, these should be put to the Judge Advocate General in open court, who should be left with the sole responsibility of determining sentence.
	I wonder whether the Minister would comment on the point also made by the noble Lord, Lord Thomas of Gresford, with very recent experience of courts martial, that whereas a civilian jury has to vote at least 10:2 to get a guilty verdict—that is only after it has been persuaded to try to reach a unanimous verdict—a court martial may privately come to its view by a simple majority of the three, five or seven members.
	Of course, there have always been differences of many kinds in the procedure of a court martial compared with a civil court, but the issue may be more important now. This point has not so far been mentioned, but I hope that the noble Lord, Lord Thomas, will agree with me on it, as I have agreed with him, because it logically follows from what he said. The matter of majority has become more important because the Clause 50 will extend the jurisdiction of a court martial to include even the most serious offences committed in the United Kingdom. Those offences will no longer be within the exclusive jurisdiction of the civil courts.
	I do not object to this extension of the service jurisdiction, because the facts and so on of the manslaughter or whatever may solely affect military people. I am happy that the normal primacy of the civilian system over offences committed in the UK should give way where the offence has an entirely service-related context. As we know, the noble and learned Lord the Attorney-General has a superintendence—I think that that is the proper word—of the services' prosecuting authority, as well as a supervision over the civilian Crown Prosecution Service, and so is the appropriate person to determine in what kind of court borderline cases should be heard.

Lord De Mauley: My Lords, I declare an interest as a recent commanding officer of a Territorial Army regiment. Before going further, perhaps I may say how pleased I am at the recent acquittal of the soldiers of the Irish Guards in their court martial. The fact that two of them have indicated their wish to cease serving as a result of the way in which they have been treated ought to give a strong message to the Government. If we continue in the direction that we are going, more will follow.
	It would be logical for me to focus my contribution in this debate on the powers of the commanding officer in the Army and on his centrality to everything that the Army does. It is difficult for anyone who has not served in the Army to understand fully the role of the commanding officer. It is helpful that several of the noble and gallant Lords who have spoken so eloquently today have, despite ending their military careers at least five ranks above that of a commanding officer, emphasised the significance of that position.
	But let me add my voice to theirs. An army is an organisation which exists to exert the will of its government by the controlled use of force. I emphasise the word "controlled". Those who are the instruments of that army—the individual soldiers—must, of course, be capable of aggression, but, equally, they must be controlled very carefully indeed. This means that they must have a respect for authority quite unlike modern civilians. Inevitably, there is a hierarchical structure, but one person, one appointment, has to be the pivotal point in that hierarchy, and in the British Army that person is the commanding officer.
	A regiment or a battalion—I use the words interchangeably—is commanded almost always by a lieutenant colonel. He will have at least 15 to 20 years' experience of commanding soldiers. A regular commanding officer will inevitably have operational experience and he will have been through the Army's rigorous command and staff training procedure.
	I said a moment ago that in the British Army it is the commanding officer who is the pivotal point in the hierarchy. This arises for several reasons. The first of these is what we call the regimental system, under which the regiment is central to a soldier's existence—he normally wears its badge throughout his career—so the man or woman at its head is naturally the key person to his career. The second reason is because, operationally, the commanding officer is at the highest position at which it is possible to know each soldier personally, as well as the operational situation he finds himself in, and is the most senior person to maintain responsibility for him beyond just the operation on which they are both currently engaged. A regiment may move from one brigade to another, but a squadron or company—even if detached for a phase of an operation—remains always part of its original regiment and always returns to it.
	The regimental system may have arisen for historical reasons, but it has been retained because it works very well indeed. Accordingly, the ethos of command within the Army is designed to foster it and everything flows from it. The powers and centrality of the commanding officer are therefore something which we tamper with at our peril.
	Perhaps I may turn now to a couple of specific areas where I see the Bill at risk of detracting from those powers and to which I hope we will return in Committee. Where the Special Investigations Branch of the Royal Military Police is tasked to carry out an investigation of a serious case, such as a murder, rape or a breach of the Official Secrets Act, the Bill proposes that the report of the SIB should go to the Army Prosecuting Authority, whereas currently that report goes to the commanding officer. If this change is made, even should there be a requirement that the commanding officer is kept informed of the progress of the investigation, it still represents a chipping away at his authority. It would be vastly better to avoid this tinkering and maintain the status quo. A list of offences means that the commanding officer could be obliged to refer to the APA those of a certain level of seriousness.
	We are assured by the Minister that regulations will set out that the commanding officer will be informed but the main channel of communication is to be between the SIB and the APA. So one can envisage a situation where a sergeant investigates a case and reports on it to a captain prosecutor, but there is a risk that the commanding officer, a lieutenant colonel, is missed out of the chain. This must be wrong. The commanding officer must be able to put the operational and command perspective and his experience—which will in almost every case be considerably greater than that of either the investigator or the prosecutor—into the equation.
	For the Government to say that the issue of informing the commanding officer will be dealt with in secondary legislation misses the point entirely. I reiterate that the centrality of the commanding officer is crucial. I understand that the drafters have resisted change because they say that the matter is of no consequence. But that is wrong. It is absolutely critical to the position of the commanding officer, whose authority will be undermined if the Bill proceeds as it stands.
	We are told that the concern is that if it is on the face of the Bill that the commanding officer is to be informed and the investigator then fails to inform him, that would risk the whole case. But this is a fundamental point—it should risk the case. It would be an injustice to the soldier and, indeed, to the victim of an alleged murder or rape, for the commanding officer not to be informed, because if he had been informed he may have been able—because of his greater experience and specific knowledge of the context of the alleged offence—to have highlighted facts that would otherwise not have come out until much later in the case, thereby avoiding delay in the achievement of justice and unnecessary cost.
	It might be argued that currently if a commanding officer receives a report on one of his soldiers in which it appears that that soldier has committed a serious offence, he has a conflict of interest between his duty of care to his soldier and his obligation to enforce justice. However, under the status quo before enactment of the Bill, he has had to bring a balance to the situation. If the Bill is enacted as it stands, the danger is that, being relieved of his responsibility to see justice done impartially, he will feel forced by the fact that his only duty is that of care to the accused soldier and to take the side of that soldier to the detriment of justice.
	There is a modern assumption that conflicts of interest are always bad and to be avoided at all costs. But we face conflicts of interests every day of our lives. Any of your Lordships who served in the other place as a constituency MP, merely by accepting a party Whip also accepted the potential for a conflict of interest. Your duty was to vote with your party when required to do so by your Whip; equally your duty was to your constituents. Sometimes—rarely, one hopes— those interests could be in conflict. You could not avoid that conflict; you had to accept responsibility for your actions. It is similar in this situation. To remove this part of the commanding officer's responsibility will remove a key element of his authority.
	I turn now to another area in the Bill where I see the commanding officer being undermined—that is, in the creation of a military complaints commissioner. The problem, of course, is that young soldiers do not make complaints. The argument of those behind the concept of a complaints commissioner is that the reason young soldiers historically have not complained is because complaints have had to go up the chain of command, and if your complaint is about your corporal—your immediate boss—you naturally fear that he will suppress it and, worse still, make your life hell. But the Army has done something about this. It has, for instance, set up a text line for soldiers to make complaints which go direct to the commanding officer. But no one has complained. Do we suppose that they will complain to a military complaints commissioner either? Of course they will not.
	What is needed is to make the chain of command work better, rather than to change the system. The commanding officer is there to be complained to. Soldiers need to be encouraged to direct their complaints to him. The Army agrees that there does need to be transparency, so it has set up an independent reviewer to look at processes and propose improvements. To jump the gun by introducing a new appointment will achieve little, if anything, but it will further undermine the centrality of the commanding officer.
	There are other areas in the Bill on which I would like to have commented, particularly on the need for the Director of Service Prosecutions and prosecutors to have military experience and on the process of review, but in view of time constraints, I will leave them on one side today and reserve the right, if I may, to comment in Committee.

Viscount Slim: My Lords, like other noble Lords, I start by thanking the noble Lord, Lord Drayson, for all the great help and assistance he has given us over this Bill. None of us, I think, pretends to be lawyers and we have different experience. We have considerable military legal experience, but we like the way in which we were briefed and the way in which the Minister listens. It is rather refreshing to find a Minister who listens and I commend him for it.
	We also owe a debt of thanks to the other place. I think the committee there did a good job. There were disagreements, as there are in any committee, but what has emerged is pretty good. I think it was not always given the full picture—one seldom gets a full picture—and I also get a little worried when the Minister says that we can perhaps put some of that right by regulation. As has been said, quite a lot more is required on the face of the Bill.
	I shall talk gently to the noble Lords, Lord Thomas and Lord Borrie. I am sorry that I did not meet the noble Lord, Lord Borrie, in Korea, although it is probably just as well that I did not because it would probably not have been to my advantage. In my day—I cannot speak for today—military law was a subject that an officer had to grapple with. Military law was an exam—a pretty stiff one—with a 60 per cent or 70 per cent pass rate that you had to pass to get into a staff college. Military sentencing was part of that. The difference from the 12 men good and true on a jury picked from everywhere—marvellous as those men and women are—is that an officer is legally trained better.
	Sitting on a court martial, as most of us in your Lordships' Chamber today have, one was the prosecutor, the defender, a member of the court martial, speaking about someone's character or in mitigation. I have to confess that I served on one for murder. In those days one could hang. That brings you up with quite a jump and you have to be really serious. To those who pooh-pooh the military legal system, as civilian barristers and solicitors sometimes like to do, I would say, "Have a care". We officers have a rough idea. We have had people in front of us for sentencing, so if you do not mind, that is it.
	An Attorney-General worth his salt—and all whom I know are—who had no military experience, would certainly want his director of prosecutions, over whom he has superintendence, to have military experience. Otherwise, where will he get military advice? As one of the noble and gallant Lords said, the judgment is often a military judgment. Military advice is needed for fighting wars, operational experience or whatever. Again, I think that that is a dangerous part of the Bill at the moment—to just list a set of legal requirements of what you want in your director of prosecution. I hope that the Minister will take that on board.
	The noble and gallant Lord, Lord Inge, mentioned that the reviewing process—the review board—is no longer there. It is no longer there because, when this Bill of human rights emerged, unlike other countries such as France and America, we did not say no. I do not know what it is about this great European market, where Ministers go and kowtow and agree to everything; they sign everything and never say no. Other people do, but Great Britain does not. We are in a pickle because that review board was a critical piece of confidence to those being court-martialled.
	The review board was also extremely good training for the senior officers on it who had to make heavy decisions and great considerations. What happens now is that we need to get round that. We have a thing called the slip rule—if I remember, it is on page 31 of the report. We are trying to put something similar in place. All that I would say to the Minister at this stage is that the slip rule is very important. Putting it as politely as I can, people seem to be going round in circles about it and I hope that the Minister will include it or get something firm.
	On the next page, what slightly worried me was how we would deal with the civilian staff who work for the MoD—provision of the rules for civilian staff. I am rather amazed that the Government have spent so much time civilianising the Army, Navy and Air Force that they have not got their civilians in line. They talk about the rights of the civilian. I would rather talk a bit more about the duty and responsibility of civilians in operational areas. An operational area could be a Royal Air Force base in Cyprus or a logistics base somewhere for the military or the Navy, or a logistics ship—I do not know how many civilians they have on them these days—that does logistics for the Royal Navy. However, that is another thing that has not been looked into and I get the impression that civilians that we employ—whether local or British—are not put in a room and taught. They do not have lectures or seminars about their responsibilities and the rules of their engagement when war breaks out and they are in an operational area.
	I am also worried about the rush to say that this is a marvellous thing, although I do think that it is good. I am very pro this Bill, but single service courts martial are necessary. I do not tell the noble Lord, Lord Garden, how to fly his Tornado. He does not tell me how to dig my slit trench and go on a fighting patrol at night. Both of us are far too scared to tell the noble and gallant Lord, Lord Boyce, how to handle his ship and what should happen on board. There are differences and civil lawyers had better understand that.
	Finally, I want to say a little about the rules of engagement. I have warned the Minister that I have been hearing some rather funny stories: I do not know whether they are true. I was told about an incident in Iraq where one of our soldiers, groups, platoons, sections or whatever was fired on. We returned fire, but the moment that the chaps turned their backs and ran off, the soldiers were told to stop firing because these chaps were no longer a problem because they were not firing at them any more. I also heard that some fled on to a boat and it motored away and they were no longer a danger to our troops.
	I find that very difficult to believe, because all we would succeed in doing is allow someone who had been shooting at you get away so that he could come back and shoot at you and probably kill you tomorrow. I simply cannot bear that sort of pathetic political correctness. I am glad that I am not involved because I would certainly shoot any enemy who had shot at me and then disappeared by running away. We had better be careful in Afghanistan—it is a different kettle of fish there. We will be a laughing stock if that sort of thing is applied.
	If one was a wag—and I am just tweaking the Minister's leg a little—one could apply that to the killing of Abu Musab al-Zarqawi the other day. He was killed sitting in a house; he was not slitting anyone's throat at that particular moment. He was not hurting anybody and two five-pound bombs fell on his house. Jolly good, I say. But what logic are you working on in your rules of engagement? This is what I am asking the Minister.
	This was a good report. There are 65 recommendations at the end of it from the House of Commons committee—very good ones, I thought. It is quite often a habit that when these reports come, they are put on a shelf and forgotten. I would like the Minister to say to us every so often, "We have done point 120, or recommendations 20 to 30 or we are working on half a dozen here and there and something is happening". I wish the noble Lord, Lord Ramsbotham, was here because there was a case in the prison service on which I was on the periphery, some years ago, where there were 93 points on a report and within 18 months, only two of them had been actioned. I am just jogging the Minister, who works hard, for nothing and I commend him greatly. But we are entitled to know how this progresses.
	I look forward to the Committee and I welcome this Bill. When I first came to your Lordships' House, 35 years ago, I was told, "For a debate like this, 13 minutes and then sit down".

Lord Garden: My Lords, this has been an excellent debate. We have ranged from the grand strategic down to the detailed implications of particular sub-sub-clauses of the Bill. I was grateful for and enjoyed the setting of the context for all of this made by the noble Lord, Lord Judd. The need for a fair, transparent military justice system which does not undermine the military leadership is an important part of the way we have to operate today and we need to see the Bill in that context.
	The experience of all the speakers has been extraordinary. We have had experts such as my noble friend Lord Thomas of Gresford and the noble Lord, Lord Campbell of Alloway, who know the court-martial procedures from the lawyers' perspective. We have had all the noble and gallant Lords who have had to dispense military justice at every level of command. We have had the noble Lord, Lord De Mauley, with his experience as a commanding officer and we have even had the noble Earl, Lord Attlee, as the recipient of military justice, giving us his experiences.
	I trust that the Minister is pleased by the general positive reaction that there has been from around the House. It is a complex Bill but it has had a generally good reception from all quarters today, and rightly so. The noble Lord, Lord Borrie, was right to tell us that it was part of a development of military justice. You can look back over the past and see how we have moved towards a fairer and more transparent system as time goes on; this is a part of that and I welcomed his speech.
	The Bill is a significant milestone and moves towards bringing the practices of the three branches of the armed services together. While the Royal Navy, the Army and the RAF have got different histories, traditions and cultures, they do work seamlessly together on joint operations. However, I find myself disagreeing slightly with the noble and gallant Lord, Lord Boyce, about how often we find ourselves operating together. I remember 20 years ago as the commanding officer of a support helicopter base that I had both RAF and Army personnel serving together under me. Yet if a soldier and an airman ended up in some alleged offence which they were involved in together, it was impossible to deal with them under the same system, the acute—

Lord Garden: My Lords, I am grateful to the noble and gallant Lord, but I still remain in slight disagreement with him. What happens when there are increasingly such situations is that justice is administered by two different commanding officers and it is not seen as fair to anybody involved in it or to those serving in the unit. I welcome the move towards a single system of military justice.
	Many noble Lords have said that the Minister, the Ministry of Defence and the Bill team have been absolutely punctilious in keeping us aware of how the Bill has been developing over time. It is a substantial and complex Bill and I thank the Minister for involving us. I should just correct the assertion made by the noble Lord, Lord Ramsbotham, of 34 stars. We make it 35 from these Benches. They are in cahoots with the Conservative Front Bench and their researchers. I have to tell the Minister that three stars that sit on the Lib Dem Benches will be doing it independently. That may be a good thing or a bad thing.
	We are going to have a lot of detailed work to do in Committee. An Armed Forces Bill presents an opportunity to consider some other aspects of modern military service. I do not remind your Lordships and many have already said it—we expect an enormous amount from the dedicated men and women who serve their country in the Armed Forces. We also expect them to operate under a much more stringent legal framework than those in civilian employment. That is understandable as the state authorises military personnel to use lethal force, and we must be certain that we have a disciplined body to deploy such force. At the same time, the state also owes a duty of care to its military given the sacrifices that they make, both in their freedoms and perhaps even their lives. We have talked about the sorts of ways we should approach that, in terms of reducing delays of justice and putting time limits within the Bill. That is something that we will certainly want to look at in Committee.
	The Army's formulation of the military covenant expresses very well the approach we need to have in this, in that soldiers—and I would extend this to other services—are expected to make personal sacrifices in the service of the nation. But the other half of that bargain is that British military personnel must always be able to expect fair treatment, to be valued and respected as individuals and they and their families will be sustained and rewarded by commensurate terms and conditions of service.
	It is therefore against both sides of the covenant that we must judge the Bill. We have talked mainly about the effect on the chain of command and the commanding officer; we also need to be thinking in Committee about the individuals who are subject to this law. In that respect, the report by Nicholas Blake into Deepcut is a remarkably useful document in one aspect—that is the training of young servicemen. But it does read across into other parts of the Bill. It was unfortunate that your Lordships did not have a chance yesterday as they did in another place, to debate the Statement that was made about the Ministry of Defence's response. That would have cleared some of the issues that we will have to talk about in Committee.
	The principles that I will be looking for in the way that the Bill goes forward is whether we are putting the right conditions for young men and women in the forces that are appropriate to the 21st century, rather than just an amalgamation of practices, some of which had their genesis in Victorian times.
	I turn now to the question of how the three Service Discipline Acts are to be merged as we have had some discussion on that. The Army and RAF elements are fairly closely aligned at the moment. We have heard why historically the Royal Navy gave its commanders greater powers and I add my congratulations to the Bill team for managing to get a good measure of agreement so that the three services can operate with a common list of offences. Those at Part 2 of Schedule 1, which require permission from the commanding officer are a good way to introduce the flexibility that we have talked about to meet different operational circumstances.
	We will need to consider in Committee maximum punishments and the detail of the offences which my noble friend Lord Thomas of Gresford addressed in his opening remarks. The noble Lord, Lord Judd, dealt in particular with Clause 8 on desertion, as did the noble Baroness, Lady Dean. That will need to be looked at, mainly because the punishment now is so disproportionate to the way people think that very few people are charged with desertion. It is also a question of making the Bill useful so that the various levels have practical utility. At the same time, the noble and gallant Lord, Lord Craig, raised important issues about the definition of active service in respect of Clause 8.
	The main discussion, not unexpectedly, has been about the role of the commanding officer and whether the Bill diminishes it in some way. There is particular concern among a number of noble Lords about the inability of the CO to dismiss a charge for a Schedule 2 offence. I am not inclined to believe that the Bill diminishes the standing of the CO; it seems appropriate that if he cannot handle a particular offence, he ought not to be able to dismiss it.
	We have also discussed the new arrangement for having a director of service prosecutions instead of the individual service prosecuting authority. Again, in the context of the Bill that seems a reasonable way forward, but we will want to have deep discussions in Committee about how to define the experience level that is needed for the holder of this post. The arguments made by the Chiefs of the General Staff to the Select Committee on the Bill about the need for military experience supported by all noble and gallant Lords and noble Lords throughout the House seemed totally persuasive. We will need to look at how we can define that job specification to get the right person there.
	With regard to what the Bill does for the rights of individual service personnel, I shall want to look at a number of issues in Committee. On the key area of complaints and redress to which a number of noble Lords have referred, we have ample evidence—as the Minister confirmed in his opening remarks—that the system is flawed and not terribly well understood. Those who believe they have cause for complaint worry that complaining will have an adverse effect on their career, and their complaints are often not taken forward promptly by the chain of command. It is not new: Sir Michael Betts, in 1995, as well as Blake, recommended the need for an independent complaints system. My noble friend Lord Roper raised the issue, as did the noble Lord, Lord De Mauley. Such an independent commission, according to the Blake proposals, would be able to examine complaints of any nature from any member of the Armed Forces. Other nations, such as the United States and Australia, manage to operate a perfectly satisfactory military system with parallel independent systems.
	As my noble friend Lord Thomas of Gresford said, the Bill is very timid in this area. It offers the prospect of an independent member of the service complaint panel if the Secretary of State decides it is appropriate. Despite this morning's headlines in the newspapers about military ombudsmen, the Government response to Blake, issued yesterday, offers only a minor modification. It is not enough; we will need to know how we are to meet recommendation 26 of the Deepcut review. Perhaps the Minister could say whether he has had a reaction yet from Mr Blake about whether he feels that his that recommendation has been met.
	We will need to look at how to get a commissioner of military complaints who can look more closely at unresolved complaints concerning a wider field than just harassment and bullying. We will seek to amend the Bill to meet this need and will consider the government amendments.
	There are many other aspects we will need to probe in Committee. The provisions relating to civilians has been mentioned by some; it is an area requiring consistent treatment. We have talked about the size of courts-martial panels; their service composition will be a matter for debate. I have less of a problem than many noble and gallant Lords and even my noble friend Lord Roper at the thought of having mixed services. If we are moving to a unified service discipline system, mixed courts-martial panels will have some advantages in terms of consistency of approach. We will doubtless discuss that in Committee.
	A great deal of detail is left to regulation. The noble and gallant Lord, Lord Craig, the noble Baroness, Lady Dean, and my noble friend Lord Roper drew attention to the need for us to have some idea of what will be in the regulations. I have a suspicion that the Government have not yet thought that through, and we may have problems in getting enough of the information about the regulations in Committee. We need to see the context of the Bill, and someone in the MoD will have to burn the midnight oil for us to be able to do that.
	Finally, I take this opportunity to say a few words about implementation. The noble and gallant Lord, Lord Boyce, spoke about the scale of the change. I know that the Ministry of Defence has thought about this, but it will nevertheless be a daunting task. Rather like the noble Viscount, Lord Slim, I built up my knowledge of Air Force law over many years—initial training, promotion exams, serving on courts martial and then various levels of command. That is the easy way, but it takes decades to do. Implementation in a couple of years will mean an extraordinarily steep learning curve for a large number of people, and a large training requirement for those who have to operate the new system. They must not make mistakes with it; we do not want that to happen because we have rushed this. I believe that a cautious approach should be taken. If it proves, as it may well do, more difficult than planned, sufficient time must be allowed.

Lord Drayson: My Lords, I am grateful to the noble Lord. There absolutely are parameters. Our difficulty is in finding the best way to define this and to give comfort to people that a service context will be provided to the prosecuting authority. We will listen to the points that have been made this afternoon, because this is a difficult area. All our Army Legal Services officers have operational experience. All Army Legal Services officers undergo at least three months' attachment with a "teeth arms" unit, and many serve with those units on operations in Afghanistan and Iraq. Serving lawyers may indeed fill the post of the Director of Service Prosecutions; they are not excluded. We want simply to ensure that the director is the best person for the job. That could be, for example, a recently retired officer, or it could be a barrister who has served in the Territorial Army.
	The noble Lord, Lord Thomas of Gresford, raised further points relating to the prosecution of civilians under the Bill—in particular, the Martin case. Service jurisdiction operates over two main groups of civilians outside the United Kingdom: first, over members of service families; and, secondly, over civil servants and contractors working with the services, especially on operations. That is an important aspect of the way in which we work in the current environment. Having a service jurisdiction does two things: first, it ensures that crimes committed by such civilians, whether against service personnel or local people, are dealt with; and, secondly, it ensures that they are dealt with by an ECHR-compliant system. We must bear in mind the fact that such systems are not always available in countries where our forces are operating. At the same time, the Bill facilitates the wider use abroad of the service civilian court, which has powers equivalent to those of magistrates' courts in England and Wales.
	The noble Lord, Lord Roper, and the noble and gallant Lord, Lord Boyce, spoke of the challenge posed by the implementation timetable of the Bill. That is a good point, of which we are very much aware. We aim to implement the Bill by the end of 2008; it is a large undertaking and we want to avoid the two extremes of trickling change over two years and making a single change so great that it is unmanageable. We are looking carefully at planning the implementation process and the matter is at the front and centre of our concerns.
	The noble and gallant Lord, Lord Vincent, asked who assesses the performance of the prosecuting authority. The service prosecuting authorities are independent of the chain of command and MoD Ministers. Regarding the new prosecuting authority, we announced yesterday that we will look to the extension of the role of the inspectorate that is under consideration in the Police and Justice Bill before your Lordships' House.
	My noble friend Lady Dean asked how commanding officers will be kept in the loop. The regulations under the Bill will require the service police to keep the commanding officer informed at specific times. That already happens. They will inform the commanding officer when a case is passed to the Director of Service Prosecutions, but, crucially, the commanding officer will be able to pass any information that he or she thinks is relevant to the offence, including any operational context, to the director before any charge is considered. This is a new and important improvement.
	Further, what other proposals are there with regard to notifying commanding officers of the conduct of investigations in ensuring that the commanding officer can provide that relevant information? We need to recognise that, if there are allegations that a soldier has acted outside the law, the service police and prosecuting authorities will seek to take into account the operational context in which the incident occurred. The commanding officer will be central to that; he needs to be an intimate part of the process.
	The noble Lord, Lord Astor of Hever, said that he believed that some of our service personnel are afraid to open fire, and he referred to a survey conducted among the 7th Armoured Brigade. That is not a view that is shared by operational commanders and the Land Warfare Centre, which is responsible for rules of engagement training. I can do no better than to quote Brigadier Lorimer, who ordered the successful rescue of two soldiers held in an Iraqi police station. He said that his men knew that they could,
	"take a life to save a life".
	The shooting investigation policy now in place in Iraq allows commanding officers to decide when their soldiers should be investigated by service police and has their strong support. The provisions in the Bill are consistent with that. Perhaps the most important point is that no prosecutions have arisen from firefights.
	The noble Viscount, Lord Slim, very effectively described his concerns regarding the rules of engagement. I assure him that mission-specific training for personnel deployed on operations takes full account of their mission and the threat that they face. That is kept under review to ensure that the personnel have the confidence to use legal force when required. I would be happy to provide a separate briefing to those Members of the House who would be interested in spending more time getting to understand the modern process for rules of engagement.
	The noble Lord, Lord Campbell of Alloway, raised the issues of the maintenance of discipline being the priority in sentencing and of sentencing taking into account operational stress factors. A number of matters would be relevant to sentencing and these have been set out in Clause 236, which includes the maintenance of discipline, as well as the punishment of offenders, the protection of the public etc. The military context generally, including operational stresses, will be a matter that can be raised in mitigation. Where relevant, they will be taken into account by courts.
	The concern about the role of commanding officers and, in detail, the position of the commanding officer when police investigate Schedule 2 and prescribed offences has been raised by a number of noble Lords. We will provide in the regulations that the police must inform the commanding officer of the investigations—in a moment, I will come on to the process of sharing with the House regulations in draft. These regulations will also provide that the commanding officer may provide information to the police and the prosecuting authority before any decision is taken on whether to charge. It is important that we have an opportunity for the House to review these regulations as part of the progress of the Bill. We recognise the central importance of that.
	My noble friend Lord Dubs raised the difficult issue of pardons for First World War soldiers. I remember this being raised by my noble friend as an oral Question and I appreciate the strong feeling in the House on this matter, which I have communicated to the department and to my right honourable friend the Secretary of State. In the light of the case of Private Harry Farr and the important issues that arise from this area of policy, my right honourable friend the Secretary of State is considering the subject as a matter of priority. He has asked officials to make the history of past policy decisions available to him. There is clearly a link between our response to the Irish Government's report and the outcome of the case of Private Farr. Until the outcome of the case is known, and has been considered and discussed with the Irish Government, no final response will be made to the Irish Government on their report. However, my right honourable friend has asked me to inform the House that he is considering all the options and is aware of the strong feelings of the House on this matter.
	The noble and gallant Lord, Lord Inge, the noble Viscount, Lord Slim, and the noble and gallant Lord, Lord Boyce, raised the issue of the abolition of review, and particularly the point that the Army were not happy about that. I hope that I dealt with this in my opening speech. I know that some in the services regret the abolition of the review, but we must recognise that the courts martial are compliant courts. We do not need and should not have non-judicial interference in their decisions. The review involves no hearing and no opportunity for the victim—who could be a serviceman or servicewoman—to be heard.

Baroness Scotland of Asthal: My Lords, the regulations enable an authorised person to require any person who applies for entry clearance to provide a record of his fingerprints and a photograph of his face. The regulations also enable an authorised person to require any person who is in possession of a 1951 Refugee Convention travel document that is endorsed with an entry clearance and who seeks leave to enter the United Kingdom to provide a record of his fingerprints and a photograph of his face. In practice, an authorised person will be an immigration officer or entry clearance officer.
	The regulations are made under Section 126 of the Nationality, Immigration and Asylum Act 2002. Section 126 provides that the Secretary of State may by regulations require an immigration application to be accompanied by specified information about the external characteristics of the applicant or enable an authorised person to require an applicant to provide such information.
	I am conscious that the time is now 9.20. I would ordinarily have fully explained the regulations. I know that they were greeted with assent in the other place. If noble Lords approve, I do not intend to say anything more because of the lateness of the hour. However, I am happy to expand on the regulations more fully if any noble Lord indicates that it would be helpful.
	As no such indication has been given, I beg to move.
	Moved, That the draft regulations laid before the House on 2 May be approved [26th Report from the Joint Committee].—(Baroness Scotland of Asthal.)

Baroness Harris of Richmond: My Lords, we are very pleased that this has now been taken on board. Let us hope that it will further help prosecutors to eradicate bribery and corruption in the prosecutions that they undertaken. These Benches support the order.

Baroness Scotland of Asthal: My Lords, I commend both noble Lords for their wonderful and most welcome approval to this order.

Lord King of Bridgwater: My Lords, I congratulate my noble friend on introducing the debate, even though I do not congratulate him on the hour at which it is being achieved. He will receive from me first prize for consistency, because he and I served together on the Intelligence and Security Committee, and it is no secret that I am aware of his views on the need for co-ordination of the Security Service and the Secret Intelligence Service in their work. I would add to that the Special Branch, as the noble Viscount illustrated.
	The noble Viscount paid tribute to instances of intelligence failures or disappointments. The Falklands and the invasion of Kuwait were two illustrations where we did not have the quality of advanced intelligence and correctness of advice that one might have hoped for. I am not sure that changing the organisation would necessarily improve the situation, but having said that he went on to instance Northern Ireland, which as he knows I know fairly well, and to pay tribute to the quality of the intelligence. The noble Viscount, Lord Brookeborough—whom if I may say so is extremely well qualified to talk on these matters having not merely talked about but been part of the determined and robust response of the community in Northern Ireland to defeat terrorism—said that he thought that 90 per cent of possible terrorist incidents of one sort or another may have been prevented by effective intelligence and co-ordination of that kind. I do not think that that was the figure at the start. That was a figure that emerged progressively over the 30 years and more in which we developed a most effective counter-terrorism organisation and in which people in the different organisations began to trust each other and work together; they did not always do so effectively—one always noticed if there were changes and if new people came in there might have been a bit of a hiatus in confidence and maybe intelligence on those occasions. It might be very sensitive and come from sensitive sources and it might not always be exchanged in the way that one might hope to see, but it was entirely understandable that that happened.
	So we learned in Northern Ireland some of the lessons that needed to be learned. We now face a completely new situation. I was invited to comment on recent events, as were the Minister and others, and give my view on the quality of intelligence. It took some time in Northern Ireland to obtain confidence—this was true of the Special Branch and MI5 and others were involved, including the Army. One does not immediately establish whether someone who rushes up to one with a bit of exciting information, is a reliable source, a dependable person, doing it for the money or because he has a grudge against his next-door neighbour; these are difficult problems. It takes time to establish confidence and reliability, which is the challenge that we face at the present time. The potential arguments between the police and the Special Branch and the assistant commissioner and allegations that MI5 and others are at loggerheads about who is responsible are paralleled by some of the things that have happened in Northern Ireland: the difficulties in dealing with difficult situations when the enemy is there and there are problems by the forces of order in trying to combat them.
	However, I accept with my noble friend is that we are dealing with a global threat. There is no question about that and we know that perfectly well from al-Qaeda training camps and the number who may have come from different cities in this country and gone for training and come back and are now present in our cities, that the previous demarcation that this is overseas and this is home does not make much sense. The challenge of how we address that is very real. But I have only one message, which needs to be understood by government and legislators. It is my experience that Ministers and government and Parliament never fully assess the price of change and the upheaval that is caused. If we start carrying through legislation that suggests major upheaval in the agencies at this moment, it will guarantee effective paralysis of agencies. Everybody working in them is human.
	My noble friend made a telling point about whether we focused too long on the Soviet threat, but the reality was that a large number of people in the SIS were trained Russian speakers—and, I hasten to add, in the Security Service, as well. Their whole life had been spent in this area; that is where there expertise was; they were not actually all rushing off to learn Arabic at whatever age they were. The inertia of that organisation is very real. The challenge of change means that the agencies need to start by recruiting a whole lot of people from backgrounds from which they have not recruited before.
	One thing that my committee encouraged, and which the Security Service said that it was doing, was to have a more open recruitment policy. It was tremendously fashionable—openness and transparency. The service advertised for new people and, if I remember rightly, 25,000 applied and 12 were appointed. That was the reality of having to deal with an entirely different situation. I pay tribute to the fact that the Government have poured extra funds into the Security Service in facing this threat, but we should not think that it will become immediately effective. The challenge of ensuring that we have made the right choices and of adapting the organisation to the situation is massive. It is an appalling argument—an ultimate conservative argument—to say, "Stop everything, let's stay as we are". You can't do that because obviously you have to adapt. But you have to weigh very carefully what changes you can make that will make sense and will be valuable.
	The real problem is that there is never a right time for that sort of change. This is particularly not the right time. We need instead to drive for the closest possible co-ordination of the Secret Intelligence Service, the Security Service, GCHQ and their linguists and all the qualities and capabilities that they have and Special Branch and police organisations and the structures for counter-terrorism.
	However, there is one area in which my noble friend had a very good point—the point about the Minister. I do not know whether the Minister is aware of this, but the Intelligence and Security Committee recommended a while back, when I had the honour to be its chairman—and it was the unanimous all-party view shared by a number of the Minister's noble friends who sit on the Labour Benches now—that there should be a single Minister who had responsibility, to whom the heads of the agencies answered. I do not know whether the Minister realises how close the present Government came to adopting that recommendation or whether she knows who the person was who thought that they would get that appointment. However, the organisation closed ranks and some of the disadvantages of that proposal and some of the lessons of the German experience were brought to bear, as it had not been entirely without difficulties, and the move was defeated at that time.
	Having been a Secretary of State for Defence and having seen the operation of the agencies and the workload of the Home Secretary and the Secretary of State for Foreign and Commonwealth Affairs and the Prime Minister, I know something of the reality of the idea that they are actually running the intelligence agencies and have a degree of ministerial control. Some of the Minister's predecessors in Government were pretty jealous of the position that they held as Secretary of State and did not encourage Ministers of State to get too involved in these areas. Uniquely, the agencies did not have that close ministerial involvement that is so important.
	The reason it is important—as the Minister will know because she is taking a lot of the flak now—is that actions taken in some of these areas by agencies and by the police have acutely difficult political consequences that can blow up in one's face. That is why the combination of ministerial leadership and the agencies answering and being closely involved with a Minister who understands and is well informed and has some involvement is a pretty powerful argument. I support my noble friend in saying that this matter needs to be looked at again. I think that the Prime Minister's initial instincts before he got into No. 10 and was cornered may well be worth looking at again.

Lord Astor of Hever: My Lords, I am grateful to my noble friend Lord Hamilton of Epsom for this valuable debate. I know that many people outside the House will scan with real interest what is said this evening. I resent what the noble Lord, Lord Wallace, implied about my party in Europe.
	My noble friend began by offering a trenchant critique of some of the more venerable features of our present arrangements and by suggesting substantial structural changes to two of the principal agencies to bring them into the 21st century. There is general support for his argument that, in today's world, the old hard-and-fast distinction between what is domestic and what is international is obsolete and counterproductive.
	There is also extensive support, certainly from this side of the House, if not yet from Her Majesty's Government, for a distinct line of ministerial accountability for the intelligence and security services and homeland defence. The basically inadequate arrangements that are presently in place are reflected in the fact that it is a Home Office, rather than a Cabinet Office, Minister who will respond to the debate. I make that point without any personal disrespect to the noble Baroness, Lady Scotland, who is charged with giving the Government's response, which, I recognise, will be a collective one. It is not the person who is wrong, but the system.
	There is a senior official in overall control at that level, who, I am led to believe, is a person of the highest competence, but we have no Minister through whom the parliamentary accountability of that official can be expressed. That said, in support of my noble friend's case, I must tell him that, as far as issues of overall reform are concerned, I am inclined to the view that he focused on the externalities of structural change at the expense of the necessary work of improving internal quality.
	This has been a timely debate, not least because we must hope that it may have helped to stop the slippage off the agenda of the observations on this subject made by the committee of inquiry, chaired by the noble Lord, Lord Butler of Brockwell. When the Butler committee reported two years ago next month, it made a number of well founded recommendations for reform—some explicit, others by implication. There have been piecemeal reports that some things been done to give effect to those recommendations, but there has been no account of action on others. We trust that in her response to this debate, the noble Baroness will provide the House with an account of what has been done so far in response to the Butler recommendations, together with an interim report on further work in progress. If by any chance she is unable to do so, I would ask the Minister to take back a firm request to her colleague for a Written Statement.
	In turning our minds to issues of possible reform of our intelligence and security services, we need to consider both what might be called the underlying primary agencies and the overarching organisation of committees and relationships, which serve to provide our intelligence community as a whole with the resources and characteristics of a network. We need to reflect too on how well suited to purpose are the procedures by which the material of intelligence is fed into the processes of policy-making and of executive action—what we may briefly describe as the tasking and assessment processes. Currently in the media are examples of some of these issues: specific intelligence, which prompted a substantial police action in east London—action which it would now appear found nothing.
	We usually think in terms of three primary agencies—the Security Service, the Secret Intelligence Service and GCHQ—funded through the single security budget, co-ordinated by the Cabinet Office and to some extent co-responsible to that office at the centre of Government. We ought also to note that until a very few years ago even the existence of these agencies was not officially admitted and it would thus have been impossible to hold this debate tonight. That we are able to do so is largely to the credit of my noble friend Lord Hurd of Westwell and, of course, John Major as Prime Minister. We should not omit from our consideration of the primary agencies the contributions and role of the Defence Intelligence Staff. The Butler report drew attention to the importance of ensuring that the resources and informed reach of the DIS can be put to good use reinforcing those of the other elements in our intelligence community.
	In the overarching network of committees and relationships, undoubtedly the most important building block is the Joint Intelligence Committee. Adding the chairmanship of the JIC to the Security and Intelligence Co-ordinator, as has been done, may well work. It may not. I am not certain that this is what the Butler committee had in mind in the fairly precise recommendation that it made about the post, to which it rightly attached such importance. The result of this superficially logical combination may well be that neither of these demanding jobs is as well done as our national security requires that they should be. They may require only being done together by a superhuman person.
	A second important building block in our overall structure is the parliamentary Intelligence and Security Committee. It would be wrong for this subject to be debated in Parliament without paying tribute to the contributions that Members of both Houses have made to the success of this particular constitutional innovation. I would particularly like to mention my noble friend Lord King of Bridgwater, the distinguished founding chairman of that committee.
	Undoubtedly one area in which considerable and continuing improvement should be sought is in the relationships between our primary agencies and those which are—formally or informally—our liaison agencies, those of other nationalities. To say that there is scope for improvement and change is not to underestimate the practical difficulties pointed out by my noble friend Lord King.
	The constraints of time are such that I cannot give the detailed consideration to the processes by which collected intelligence is fed into the policy-making machinery and into decisions on executive action that the intrinsic importance of these dimensions would merit. I must, however, mention the benefit that the noble and learned Lord, Lord Lloyd of Berwick, and others believe would follow if communication intercepts could be adduced in evidence by amendment of the Regulation of Investigatory Powers Act 2000. There are, of course, other views on this, all for further debate another day. Similarly, with regard to the tasking and assessment processes, I can do no more than regret that there were not opportunities in the course of the debate to consider them properly, particularly in relation to the important and cost-effective role of the BBC Monitoring Service.
	My noble friend Lord Hamilton has made a strong case for the general concept that the work of our intelligence community can continue to be improved and should be improved. It may be that such continuing improvement will justify, to some extent, the label of "reform", but the pace of that reform should be progressive and well considered and not wholesale and revolutionary.
	I, for one, do not believe that we should feel dissatisfied with the way in which our intelligence and security community works at the moment; nor do I believe that we should allow them, or ourselves, to take false comfort in expressions of satisfaction. The rapidly changing dangers which that community has to anticipate and counter on our behalf are too serious and too threatening for that.

Baroness Scotland of Asthal: My Lords, I join others in thanking the noble Lord, Lord Hamilton, for giving us this opportunity to debate the issue of the Security Service, and I thank him for the courtesy that he has shown us all in sharing with us in advance an outline of his concerns.
	I respectfully and gently suggest to the noble Lord that the balance of the debate tends to indicate that his concern about the structure or framework in which the Security Service operates is not as flawed as he would have us believe. There was much power in what was said by the noble Lords, Lord King and Lord Wallace, about the way in which things have mutated and developed. It is absolutely right that a number of noble Lords—not least, the noble Viscount, Lord Brookeborough—should have said that we are living in a complex and changing environment. The noble Lord, Lord Hamilton, himself acknowledged that this is a very different framework from the one that we faced previously. The threat has changed; the speed has changed; the complexity is deeper than it has ever been; and therefore the challenge is the greater. Thus, there is great force in the comment of the noble Lord, Lord King, that this is not the time to undertake dramatic change in the way that the service is structured. The noble Lord was right when he said, "If it's not bust, don't fix it".
	I also take issue with the noble Lord for suggesting that the Security Service of the past has been a dismal failure—I think that that was how he described it. That is not our experience. It would not be fair to say and I cannot accept the central assertion that our intelligence agencies performed poorly in the circumstances that he described. We have much to be grateful for. They have undertaken essential work against a range of threats to the United Kingdom and to the UK interest, and the contribution to our nation's security cannot be overestimated. Perhaps I may touch on some of the historical issues that the noble Lord may have forgotten.
	It is not possible to assess the SIS record on the Soviet threat as a poor performance, once the early damage caused by fellow travellers recruited before World War II had been remedied, even if one talks only about the cases that have become public knowledge—for example, the vital contribution of Penkovsky in the Cuban missile crisis or Gordievsky in the Reagan era. Both SIS agents have been publicly acknowledged.
	The question of possible intelligence failures in the lead-up to the Falklands conflict was dealt with fully in the Franks report, which I am sure that the noble Lord, Lord King, will remember. Lord Franks pointed out that the decision to invade the Falklands was taken by the junta at a very late stage and that the intelligence agencies could not have been expected to provide earlier warning of the invasion. With regard to the Gulf War, no western intelligence agency predicted the invasion of Kuwait in sufficient time to prevent it, while the lessons learnt about the validation and use of intelligence arising from efforts to gather and assess intelligence on Iraq's weapons of mass destruction programme have been identified by the noble Lord, Lord Butler, and implemented by SIS across Whitehall.
	So it is perhaps worth noting that both the failures to which the noble Lord, Lord Hamilton, refers relate to efforts to collect intelligence on the intentions of a state run by a ruthless dictator. History has shown that such regimes are difficult intelligence targets, requiring years of dedicated work to penetrate their secrets. Therefore, I do not take issue with the noble Lord, Lord King, when he says that you cannot develop intelligence sources overnight. They take time, skill, energy and patience.
	Our intelligence service, which I know that the noble Lord, Lord Hamilton, is familiar with, has to be seen against that background. We have changed. We have learnt in the way that we respond, co-operate and participate with one another. Northern Ireland was a cruel but effective learning exercise. That is why we have evolved as we have, why we have the skills that we have and why so many other services envy our acuity, because it has been hard won. I agree with the noble Lord, Lord Astor, that there is no room for complacency. No matter how well we have performed, we must do better.
	The noble Lord, Lord Hamilton, said, I think, that no one had anticipated the attack on London. I remind him how wrong that was. I remember—I still feel the scars on my back—being challenged month after month when I asserted from this Dispatch Box that the threat was real and that the contingency planning that we were urgently undertaking was necessary because it was a question not of "if", but "when".
	The noble Viscount, Lord Brookeborough, is right. The number of things that have been defeated because of the intelligence service's work has been considerable. For the first time, we have said that, after 7/7, we were able to deal with and avoid a number of threats. That is a little new. Coming to openness, there is an understanding that we must share information in a creative but safe way, so that people understand what we are about.
	There is real evidence to demonstrate how we have worked with the services. It is right to remind ourselves that there are three: the SIS, the Security Service and, as a number of noble Lords have mentioned, GCHQ. So there is change and safety—

Baroness Scotland of Asthal: My Lords, you could say there are five. We could go much wider, a point that I think noble Lords would make. But the three classic services we are talking about are SIS, SS and GCHQ.
	Each of those services has a different emphasis. GCHQ's foreign intelligence business revolves around the business management and exploitation of large-scale signal intelligence facilities. SIS specialises in human intelligence gathering overseas. The Security Service operates primarily domestically to counter a range of national security threats, co-operating closely with law enforcement to deliver various forms of action, not just intelligence, as its principal output. Each has their own specialisation, and each adds something to the other.
	The need to collaborate, co-ordinate and work in unison is clear. We have made significant improvements in our ability to do this. Merging these intelligence agencies would not give us the same level of acuity that we now have with a well co-ordinated service.
	We have made changes in order to improve that position. I am sure that noble Lords will be familiar with the work of the Joint Terrorism Analysis Centre. Its work has been complimented by many people. It was established in 2003 and brings together cross-community expertise in the agencies, defence intelligence, the police and other organisations to provide timely analysis and operational intelligence assessment of the threat from international terrorism. The Intelligence and Security Committee said in its 2003–04 annual report—and I am sure the noble Lord will remember this comment:
	"The introduction of JTAC has been a success".
	That is a sentiment shared by others. In 2005, JTAC received more than 150 senior foreign visitors, including government Ministers, senior officials and royalty from Norway and Saudi Arabia. Those visits were in order to look at the model. The JTAC model has been emulated in the formation of similar centres in the United States, Australia, Canada, New Zealand and Spain. Other countries within Europe have had close contact with JTAC in developing their counter-terrorism structures, for example, Germany, the Netherlands and Sweden. The noble Lord, Lord Wallace of Saltaire, is right to say that that work is something to be celebrated and talked about. I know the sensitivity on the Benches opposite, and there seems to be a little dissonance—not in this House, but in the other place—about how Europe should be looked at. Another illustration of why this work is so important and the way in which we deal with it is CONTEST, which is an example of working together across organisational boundaries. The Government's CONTEST international counter-terrorism strategy spans all relevant government departments. That co-ordination has real value.
	On the subject of a single Minister for intelligence agencies, noble Lords are right. The noble Lords, Lord Astor, Lord King and Lord Hamilton, all asked about a new Minister and whether that is not an idea whose time has ripened. We think that the current situation enables us to have the direction that all noble Lords have spoken about. Currently, GCHQ and SIS fall under the authority of the Foreign Secretary and the Security Service falls under that of the Home Secretary. The rationale is that GCHQ and SIS activities are primarily in support of foreign and defence objectives. Their objectives are mainly foreign, and any difficulties arising from their activities are most likely to involve foreign states. Security Service targets are primarily in the United Kingdom and any difficulties arising from its activities are mostly likely to occur in the United Kingdom.
	If there were to be an Minister for intelligence in practice—I remind the noble Lord, Lord Hamilton, that, for the first time, we have a woman Foreign Secretary, so she is now responsible for that role—her power would be likely to be circumscribed by the continuing need to seek the concurrence of other Ministers before authorising operations abroad or at home. There could be conflict. An alternative would be to leave the agencies under the overall authority of the present Secretaries of State, but to appoint an intelligence Minister under them to exercise managerial, but not operational, supervision of all three. That is a complex arrangement, and we think that with the assistance of the Prime Minister the current arrangement works well.
	I know that I have run over time, but I say quickly to the noble Lord, Lord Astor, that the Government accepted the conclusions of the Butler review and have implemented its recommendations. We have put in a whole series of things. The noble Lord will know that another report is about to come out on a review to see whether that which we have put in place meets the needs and satisfies the Butler recommendations. When that report comes out, I am sure we will be able to share it with the noble Lord.
	I thank the noble Lord, Lord Hamilton, for giving me this opportunity to celebrate the way in which the security services have worked, while acknowledging that there is much more work for us to do in a much more complex and difficult environment than any of us have ever worked in before.

The Bill was returned from the Commons with an amendment disagreed to, with a reason for such disagreement and with the remaining Lords amendments agreed to; the reason was ordered to be printed.
	House adjourned at half past ten o'clock.
	Wednesday, 14 June 2006.